Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer is the survivor) 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 another Person unless: (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied. (b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied. (c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries. (d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied. (e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 2 contracts
Sources: Indenture (Eott Energy Finance Corp), Indenture (Eott Energy Finance Corp)
Merger, Consolidation or Sale of Assets. (a) Neither Delta shall not merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) unless:
(1) immediately after giving effect thereto no Early Amortization Event, Default or Event of Default shall have occurred and be continuing;
(2) Delta is the surviving corporation or, if otherwise, (x) such other Person or continuing corporation (the “Successor Company”) shall (A) be an “air carrier” within the meaning of Section 40102(a)(2) of Title 49, and hold a certificate under Section 41102(a)(1) of Title 49; (B) be a United States Citizen; (C) be an air carrier and hold an air carrier operating certificate and other operating authorizations issued by the FAA pursuant to 14 C.F.R. Parts 119 and 121 as currently in effect or as may be amended or recodified from time to time; and (D) except as specifically permitted herein or in the Collateral Documents, possess all necessary certificates, exemptions, franchises, licenses, permits, designations, rights, concessions, authorizations, frequencies and consents which are material to the conduct of its business and operations as currently conducted, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; and
(3) in the case of a Successor Company, the Successor Company shall (A) execute, prior to or contemporaneously with the consummation of such transaction, such agreements, if any, as are in the reasonable opinion of the Issuers Administrative Agent, necessary to evidence the assumption by the Successor Company of liability for all of the obligations of Delta hereunder and under the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company. Upon any consolidation or merger in accordance with this Section 6.10(a) in any case in which Delta is not the surviving corporation, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, Delta under this Agreement with the same effect as if such Successor Company had been named as “Delta” herein. No such consolidation or merger shall have the effect of releasing Delta or any Successor Company which theretofore shall have become a successor to Delta in the manner prescribed in this Section 6.10(a) from its liability with respect to any Loan Document to which it is a party.
(b) Delta shall not liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution).
(c) No SPV Party shall, directly or indirectly, : (i) consolidate or merge with or into another Person, or permit any other Person to merge into or consolidate with it, or (whether or not such Issuer is the survivorii) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assetsproperties, in one or more related transactions, to another Person unless: (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedPerson.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 2 contracts
Sources: Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.), Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Company shall not, directly or indirectly: (i) consolidate, consolidate merge or merge amalgamate with or into another Person (whether or not such Issuer the Company is the survivorsurviving corporation); or (ii) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(a) either:
(A) the Company is the surviving corporation; or
(B) the Person unless: formed by or surviving any such consolidation, merger or amalgamation (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is organized or existing under the laws of the United States, any state of the United States or the District of Columbia and is either (i) either (A) such Issuer is the surviving entity of such transaction; a corporation or (Bii) a limited partnership or limited liability company and is (or has previously been) joined by a corporation as a co-issuer of the Notes;
(b) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer the Company under the Notes Notes, this Indenture, the Registration Rights Agreement and this Indenture the Security Documents and pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; Trustee and the Collateral Agent;
(iiic) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(ivd) immediately after giving pro forma effect to such transaction, such Issuer either (i) the Company or the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof4.11(a); and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by Company would have a Fixed Charge Coverage Ratio equal to or resulting from such reorganization is an entity organized or existing under greater than the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations actual Fixed Charge Coverage Ratio of the Company under for the Notes and this Indenture pursuant four-quarter period immediately prior to supplemental indentures in forms reasonably satisfactory to such transaction. In addition, the Trustee; (iv) immediately after such reorganization no Default Company will not, directly or Event of Default exists; (v) such reorganization is not materially adverse to the Holders indirectly, lease all or substantially all of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders properties and assets of the Notes (A) solely because the successor Company and its respective Restricted Subsidiaries taken as a whole, in one or survivor of such reorganization (x) is subject more related transactions, to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedPerson.
Section 5.01 (c) The provisions of Section 4.1 and (d) will not apply to to: (i) a merger merger, amalgamation or consolidation of the Company with an Affiliate solely for the purpose of
(a) reorganizing the Company as a different type of entity; provided that in the case where the surviving entity in such merger, amalgamation or consolidation is not a corporation, a corporation becomes (or has previously become) a co-issuer of the Notes, or (b) reincorporating or reorganizing the Company in another jurisdiction; or (2) any consolidation, amalgamation or merger, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets, assets between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. Neither the Partnership nor any Guarantor may, directly or indirectly (a) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer the Partnership or the Guarantor is the survivorsurviving entity) or (b) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its and its Restricted Subsidiaries', properties or assets, taken as a whole, in one or more related transactions, to another Person Person; unless: :
(i) either (A) such Issuer the Partnership or the Guarantor, as applicable, is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Partnership or the Guarantor) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Partnership or the Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Partnership or the Guarantor, as applicable, under the Notes, this Indenture, the Registration Rights Agreement, any Guarantee of the Notes and this Indenture the Collateral Documents pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect such transaction would not result in the loss or suspension or material impairment of any of the Partnership's or any of its Restricted Subsidiaries' Gaming Licenses unless a comparable replacement Gaming License is effective prior to or simultaneously with such transactionloss, such Issuer suspension or material impairment;
(v) in the case of a consolidation or merger of the Partnership, the Partnership or the Person formed by or surviving any such consolidation or merger (if other than the Partnership) or to which such Issuer)sale, except assignment, transfer, conveyance or other disposition shall have been made will, or, in the case of such a transaction involving EOTT Financeconsolidation or merger of a Guarantor or the sale, willassignment, transfer, conveyance or other disposition of the property or assets of the Guarantor, the Partnership shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and and
(vvi) such Issuer has delivered transaction would not require any Holder or Beneficial Owner of the Notes to obtain a Gaming License or be qualified or found suitable under the Trustee an Officers' Certificate and an Opinion law of Counselany applicable gaming jurisdiction; provided, each stating however, that such consolidationHolder or Beneficial Owner would not have been required to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction. In addition, merger neither the Partnership nor any Guarantor may, directly or transfer andindirectly, if lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The restrictions of this Section 5.01 shall not apply to a supplemental indenture is requiredsale, such supplemental indenture complies with this Indenture assignment, transfer, conveyance or other disposition of assets between or among the Partnership and all conditions precedent therein relating to such transaction has been satisfied.
(b) any of its Restricted Subsidiaries. 71 Notwithstanding the foregoing paragraphforegoing, the Company is permitted to Partnership may reorganize as any a corporation or other form of business entity in accordance with the procedures established in this Indenture; , provided that (i) the reorganization involves Partnership has delivered to the conversion (by merger, sale, contribution or exchange Trustee an opinion of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of counsel in the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms States reasonably satisfactory acceptable to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such Trustee confirming that the reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a it being recognized that the reorganization shall will not be considered materially deemed adverse to the Holders of the Notes (A) solely because (a) of the accrual of deferred tax liabilities resulting from the reorganization or (b) the successor or survivor of such reorganization surviving corporation (xi) is subject to federal or state income taxation tax as an a corporate entity or (yii) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) the Internal Revenue Code of the Code 1986, as amended, or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Shreveport Capital Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer may not (1) consolidate or merge with or into another Person (whether or not such the Issuer is the survivorsurviving Person); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, transactions to another Person Person; unless:
(1) either: (ia) either (A) such the Issuer is the surviving entity of such transactionPerson; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof or of the United States, the District of ColumbiaColumbia or any territory thereof (the Issuer or such Person, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; case may be, being herein called the “Successor Company”);
(ii2) the Person formed by or surviving any such consolidation or merger Successor Company (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Notes Notes, this Indenture, and this Indenture the Registration Rights Agreement pursuant to supplemental indentures agreements in forms form reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of Default exists; and
(iii4) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions transactions, as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either
(a) the Successor Company would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(b) the Fixed Charge Coverage Ratio test set forth for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction; provided that, for the purposes of this Section 5.01 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole. For the avoidance of doubt, (1) the Issuer may therefore consummate a Music Publishing Sale in accordance with Section 4.13 without complying with this Section 5.01 notwithstanding anything to the contrary in this Section 5.01, (2) the Issuer may therefore consummate a Recorded Music Sale in accordance with Section 4.13 without complying with this Section 5.01 notwithstanding anything to the contrary in this Section 5.01 and (3) the determination in the first paragraph preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Issuer under any other contract to which the Issuer is a party. For the purpose of this Section 5.12 hereof; 5.01, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Issuer or any Restricted Subsidiary), the determination of whether such sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Issuer and its Restricted Subsidiaries. The foregoing clauses (3) and (v4) such shall not apply to the Merger. Notwithstanding the foregoing clauses (3) and (4), (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer has delivered or to another Restricted Subsidiary and (ii) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another state of the United States so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby. The foregoing sentence shall not apply to the Merger. In the event of any transaction described in and complying with the conditions listed in the preceding paragraph in which the Issuer is not the continuing corporation, the successor Person formed or remaining shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer and the Issuer will be discharged from all obligations and covenants under this Indenture and the Notes.
(b) The Issuer will deliver to the Trustee prior to the consummation of each proposed transaction an Officers' Officer’s Certificate certifying that the conditions set forth above are satisfied and an Opinion of Counsel, each stating which opinion may contain customary exceptions and qualifications, that such consolidation, merger or transfer andthe proposed transaction and the supplemental indenture, if a supplemental indenture is requiredany, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedIndenture.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Warner Music Group Corp.)
Merger, Consolidation or Sale of Assets. (a) Neither of the The Issuers shall, directly or indirectly, may not consolidate or merge with or into another Person (whether or not such Issuer is the survivor) Issuers are the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its their properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or and existing under the laws of the United States, any state thereof or the District of Columbia, Columbia provided that EOTT Finance FCC may not consolidate or merge with or into any entity other than a corporation satisfying such requirement requirements for so long as the Company Foamex remains a limited liability companypartnership; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of an Issuer with or into one of its Wholly Owned Restricted Subsidiaries, such the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a Issuer immediately preceding the transaction involving EOTT Financeand (B) shall, will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer has delivered to . In the Trustee an Officers' Certificate and an Opinion case of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, lease, transfer, lease, conveyance or other disposition of assets, between all or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws substantially all of the United Statesassets of an Issuer, any state thereof or upon the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture assumption provided for in form reasonably satisfactory to the Trustee, clause (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is requiredabove, such supplemental indenture complies with Issuer shall be discharged from all further liability and obligation under this Indenture and all conditions precedent therein relating to such transaction have been satisfiedIndenture.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Foamex International Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallPremier may not, directly or indirectly, : (1) consolidate or merge with or into another Person or (whether or not such Issuer is the survivor2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of its and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person unless: Person; UNLESS:
(i1) either (Aa) such Issuer Premier is the surviving entity of such transaction; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such IssuerPremier) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such IssuerPremier) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer Premier under the Notes and this Indenture Notes, the Indenture, the Registration Rights Agreement, the Collateral Documents, the Rank Intercreditor Agreement or any FF&E Intercreditor Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transaction, such Issuer Premier or the Person formed by or surviving any such consolidation or merger (if other than such IssuerPremier), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and ;
(v5) such Issuer has delivered transaction would not result in the loss or suspension or material impairment of any of Premier's or any of its Restricted Subsidiaries' Gaming Licenses, unless a comparable replacement Gaming License is effective prior to the Trustee an Officers' Certificate and an Opinion of Counselor simultaneously with such loss, each stating that such consolidation, merger suspension or transfer material impairment; and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to
(6) such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted would not require any Holder or Beneficial Owner of Notes to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution obtain a Gaming License or exchange of assets be qualified or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing found suitable under the law of the United Statesany applicable gaming jurisdiction; PROVIDED, any state thereof HOWEVER, that such Holder or the District of Columbia; (iii) the entity so formed by Beneficial Owner would not have been required to obtain a Gaming License or resulting from such reorganization assumes all the obligations of the Company be qualified or found suitable under the Notes and this Indenture pursuant to supplemental indentures laws of any applicable gaming jurisdiction in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor absence of such reorganization (x) is subject to federal transaction. In addition, Premier may not, directly or state income taxation as an entity indirectly, lease all or (y) is considered to be an "includible corporation" substantially all of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code its properties or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between in one or among more related transactions, to any other Person. Notwithstanding the Company foregoing, Premier and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture Subsidiaries may reorganize pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedPermitted C-Corp. Reorganization.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer shall not consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) such the Issuer is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transaction, such the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Issuer immediately preceding the transaction involving EOTT Finance, and (B) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such . In connection with any consolidation or merger, or any sale, assignment, transfer, lease, conveyance, or other disposition of all or substantially all of the assets of the Issuer has delivered in accordance with this Section 5.01, the Issuer shall deliver, or cause to be delivered, to the Trustee Trustee, in form reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance conveyance, or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies respect thereto comply with this Indenture Article 5 and that all conditions precedent therein herein provided for relating to such transaction have been satisfiedcomplied with.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Anchor Holdings Inc)
Merger, Consolidation or Sale of Assets. (a) Neither The Issuer or Issuers holding all or substantially all of the assets of the Issuers shallon a combined basis will not, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuers on a combined basis in one or more related transactions, to another Person unless: unless (i) either (A) such Issuer is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for the Issuers agree that so long as the Company remains Senior Subordinated Notes are outstanding at least one of the Issuers shall be a limited liability companycorporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Senior Subordinated Notes and this the Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately before and after giving pro forma effect to such transaction, transaction no Default or Event of Default existsshall have occurred; and (iv) immediately after giving pro forma effect to except in the case of a merger of such transactionIssuer with or into a Restricted Subsidiary of such Issuer, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in or to which such sale, assignment, transfer, conveyance or other disposition shall have been made, together with the case of such a transaction involving EOTT Financesurviving Issuers, will, on the date of immediately before and after such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodquarter, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.9. None of the Issuers may, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Notwithstanding the foregoing, (a) any or all of the Issuers may merge or consolidate with or transfer substantially all of its assets to an Affiliate that has no significant assets or liabilities and (v) was formed solely for the purpose of changing the jurisdiction of organization of such Issuer has delivered to or the Trustee an Officers' Certificate form of organization of such Issuer, provided that the amount of Indebtedness of such Issuer and an Opinion its Restricted Subsidiaries is not increased thereby and provided, further, that the successor assumes all obligations of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Issuer under the Indenture and all conditions precedent therein relating to such transaction has been satisfied.
the Registration Rights Agreement and (b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established nothing in this Indenture; provided that (i) Section 5.1 shall be deemed to prevent the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) consummation of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedReorganization.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Avalon Cable Finance Inc)
Merger, Consolidation or Sale of Assets. Article 15 The Issuer will not (a1) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer it is the survivorsurviving corporation) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets as an entirety or assets, substantially as an entirety in one or more related transactions, to another Person Person, unless: either: (ia) either (A) such the Issuer is the surviving entity of such transactionPerson; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity an Approved Jurisdiction (other than a corporation satisfying such requirement for so long as the Company remains a limited liability companyFederal Republic of Nigeria); (ii) the Person formed by or surviving any such consolidation or merger with the Issuer (if other than such the Issuer) or the Person to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have has been made assumes all the obligations of such the Issuer under the Senior Notes and this Senior Notes Indenture pursuant to a supplemental indentures in forms reasonably satisfactory to the Trusteeindenture; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, period (A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Consolidated Net Leverage Ratio test set forth in the first paragraph of Section 5.12 hereof4.09 (a) hereof or (B) have a Consolidated Net Leverage Ratio not greater than it was immediately prior to giving effect to such transaction; and (v) such the Issuer has delivered delivers to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Officer’s Certificate and an Opinion of Counsel, in each case, stating that such consolidation, merger or transfer and, if a supplemental indenture is required, and such supplemental indenture complies comply with this Indenture covenant and that all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Senior Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions satisfied and that this Senior Notes Indenture and the Senior Notes constitute legal, valid and binding obligations of Section 4.1 will not apply to a merger or consolidationthe Issuer, or the Person formed by or surviving any salesuch consolidation or merger (as applicable) enforceable in accordance with their terms. A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee and Section 10.05 hereof) will not, assignmentdirectly or indirectly: (1) consolidate or merge with or into another Person (whether or not such Guarantor is the surviving corporation) or (2) sell, assign, transfer, lease, conveyance convey or other disposition otherwise dispose of assetsall or substantially all of the properties or assets of such Guarantor and its Subsidiaries that are Restricted Subsidiaries taken as a whole, between in one or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not more related transactions, to another Person, unless: either: such Subsidiary Guarantor is the surviving Person) another Person, whether ; or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under Person to which such Subsidiary Guarantor was organized and sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary under its Note Guarantee of the Notes and this Senior Notes Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) indenture; immediately after giving pro forma effect to such transactiontransaction or transactions (and treating any Indebtedness which becomes an obligation of the surviving corporation as a result of such transaction as having been incurred by the surviving corporation at the time of such transaction or transactions), no Default or Event of Default exists exists; and (iii) the Company has delivered Issuer delivers to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, in each case, stating that such consolidation consolidation, merger or merger and, if a supplemental indenture is required, transfer and such supplemental indenture complies comply with this Indenture covenant and that all conditions precedent therein in this Senior Notes Indenture relating to such transaction have been satisfied.
(e) In satisfied and that this Senior Notes Indenture and the event of a sale or other disposition of all the assets of any Subsidiary GuarantorNote Guarantee constitute legal, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all valid and binding obligations of the Equity Interests of such Subsidiary Guarantor) Guarantor or the Person acquiring formed by or surviving any such consolidation and merger (as applicable) enforceable in accordance with their terms. [Reserved]. This Section 5.01 will not apply to (i) any consolidation or merger of any Restricted Subsidiary that is not a Guarantor with and into the property Issuer or a Guarantor; (ii) any consolidation or merger of any Guarantor with or into the Issuer or any other Guarantor; or (iii) any Permitted Reorganization effected in compliance with the definition thereof (iv) any Guarantor Redomiciliation; provided that, in the event case of a sale or other disposition of all the assets of such Subsidiary GuarantorSections 5.01(d)(i) and (ii) hereof, Sections 5.01(a)(ii) and 5.01(a)(v) hereof will be released complied with. Sections 5.01(a)(iii), 5.01(a)(iv) and relieved 5.01(b)(ii) hereof will not apply to any merger or consolidation of the Issuer or any obligations under its Subsidiary Guarantee; provided that Guarantor with or into an Affiliate solely for the purpose of reincorporating the Issuer or such Guarantor in another jurisdiction. This Section 5.01 will not apply to any transaction complies undertaken in accordance with the provisions of Section 5.14 5.03 hereof.
Appears in 1 contract
Sources: Third Supplemental Senior Notes Indenture (IHS Holding LTD)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallIssuer nor the Company may, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not such the Issuer or the Company, as the case may be, is the survivor) or (2) sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of the properties and assets of the Company and its properties or assetsRestricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person Person, unless:
(1) either: (ia) either (A) such the Issuer or the Company, as the case may be, is the surviving entity of such transactionPerson; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Issuer or the Company, as the case may be) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Issuer or the Company, as the case may be) or the Person to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have has been made (if other than the Issuer or the Company, as the case may be) expressly assumes in the case of the Issuer all the obligations of such the Issuer under the Notes and this Indenture and, in the case of the Company, all the obligations of the Company under this Indenture and its Note Guarantee, in each case pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transactiontransaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, such Issuer either (a) the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter periodtransfer, conveyance, lease or other disposition has been made, would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v4.09(a) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger hereof or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) have had a Fixed Charge Coverage Ratio of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such Subsidiary Guarantor) shall be an entity organized sale, assignment, transfer, conveyance, lease or existing under other disposition has been made, is equal to or greater than the laws Fixed Charge Coverage Ratio of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) Company immediately after giving effect prior to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(eb) In Notwithstanding the event foregoing, compliance with Section 5.01 will not be required for (1) any statutory conversion of a sale the Company or the Issuer to another form of entity or (2) any sale, assignment, transfer, conveyance, lease or other disposition of all properties or assets between or among the assets Company and its Restricted Subsidiaries. Clauses (3) and (4) of Section 5.01(a) hereof will not apply to any Subsidiary Guarantor, by way of merger, merger or consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) Company or the Person acquiring Issuer (1) with or into one of the property Company’s Restricted Subsidiaries for any purpose or (2) with or into an Affiliate solely for the purpose of reorganizing the Company or the Issuer in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofanother jurisdiction.
Appears in 1 contract
Sources: Indenture (Berry Petroleum Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer shall not consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such the Issuer is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Issuer with or into a Wholly Owned Subsidiary of the Issuer, such the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Issuer immediately preceding the transaction involving EOTT Financeand (B) shall, will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.quarter
Appears in 1 contract
Sources: Indenture (Shop Vac Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer shall not, directly or indirectly, (x) consolidate or merge with or into another Person (whether or not such the Issuer is the survivor), or (y) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person Person, unless: :
(i1) either (Aa) such the Issuer is the surviving entity of such transaction; Person or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that at any time such surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(2) the "SUCCESSOR COMPANY"Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either
(A) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Ratio of the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, is equal to or greater than the Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; and
(5) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and such supplemental indenture, if any, comply with this Indenture.
(b) Notwithstanding the restrictions described in Sections 5.01(a)(3), 5.01(a)(4) or 5.01(a)(5), (i) any Restricted Subsidiary of the Issuer may consolidate with or merge into the Issuer and (ii) the Issuer may consolidate with or merge into or dispose all or substantially all of its properties or assets to any Guarantor; and the Issuer, in the case of clause (i) or (ii), will not be required to comply with Sections 5.01(a)(3), 5.01(a)(4) or 5.01(a)(5) in connection with any such consolidation, merger or disposition.
(c) Notwithstanding Section 5.01(a), the Issuer may reorganize as any other form of entity in accordance with the following procedures:
(1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Issuer into a form of entity other than a corporation formed under Delaware law;
(2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.;
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii3) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture or other agreement in forms a form reasonably satisfactory to the Trustee; ;
(iv4) immediately after such reorganization no Default or Event of Default exists; and
(v5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (v5) a reorganization shall will not be considered materially adverse to the Holders or Beneficial Owners of the Notes (A) solely because the successor or survivor of such reorganization (xa) is subject to federal or state income taxation as an entity or (yb) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i1504(b) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary A Guarantor shall may not sell or otherwise dispose of, in one or a series of related transactions, all or substantially all of its properties or assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company Issuer or a Wholly-Owned Restricted Subsidiaryanother Guarantor, unless unless:
(i1) subject immediately after giving effect to the provisions such transaction or series of Section 4.1(e)related transactions, no Default or Event of Default exists; and
(2) either:
(A) the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary the Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and unconditionally assumes all the obligations of such Subsidiary that Guarantor pursuant to the Subsidiary Guarantor's Subsidiary under its Guarantee of the Notes and this Indenture pursuant to a supplemental indenture or other agreement in form reasonably satisfactory to the Trustee; or
(B) such transaction or series of transactions does not violate Section 4.10. In case of any such consolidation, (ii) immediately after giving effect to such transactionmerger, no Default sale or Event of Default exists other disposition and (iii) upon the Company has assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee an Officers' Certificate and an Opinion satisfactory in form to the Trustee, of Counsel, each stating such consolidation or merger and, if a supplemental indenture is requiredthe Guarantee of the Guarantor and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such supplemental indenture complies successor Person will succeed to and be substituted for the Guarantor with this Indenture and all conditions precedent therein relating to such transaction have the same effect as if it had been satisfiednamed herein as a Guarantor.
(e) In For purposes of this Section 5.01, the event of a transfer (by lease, assignment, sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, in a single transaction or a sale or other disposition series of transactions) of all or substantially all of the Equity Interests properties or assets of any Subsidiary Guarantorone or more Restricted Subsidiaries of the Issuer, then such Subsidiary Guarantor the Capital Stock of which constitutes all or substantially all of the properties or assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Issuer.
(in the event f) Any reference herein to a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a sale limited liability company, limited partnership or other disposition, by way trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation consolidation, amalgamation, assignment, sale, disposition or otherwisetransfer, or similar term, as applicable, to, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event with a separate Person. Any division of a sale limited liability company, limited partnership or other disposition of all the assets of such Subsidiary Guarantor) will be released trust shall constitute a separate Person hereunder (and relieved each division of any obligations under its Subsidiary Guarantee; provided limited liability company, limited partnership or trust that the transaction complies with the provisions of Section 5.14 hereofis a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, may: (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving entity); or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) such Issuer is the surviving entity of such transactionentity; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided however, that EOTT Finance Corp. may not consolidate or merge with or into any entity Person other than a corporation satisfying such requirement for so long as the Company remains Antero Midstream Partners is not a limited liability company; corporation;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms form reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transactionin the case of a transaction involving Antero Midstream Partners and not Finance Corp., such Issuer Antero Midstream Partners or the Person formed by or surviving any such consolidation or merger (if other than such IssuerAntero Midstream Partners), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, lease, conveyance or other disposition has been made, will on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, Reference Period:
(A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) have a Fixed Charge Coverage Ratio not less than the first paragraph Fixed Charge Coverage Ratio of Section 5.12 hereofAntero Midstream Partners immediately prior to such transaction; and and
(v5) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies (if any) comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied. provided that this Section 5.01 will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Antero Midstream Partners and its Restricted Subsidiaries, provided further that Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of Antero Midstream Partners (A) with or into one of its Restricted Subsidiaries or a Guarantor for any purpose or (B) with or into an Affiliate solely for the purpose of reorganizing Antero Midstream Partners in another jurisdiction.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company is Antero Midstream Partners will be permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company Antero Midstream Partners into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia Columbia;
(3) the entity so formed by or the laws of the jurisdiction under which resulting from such Subsidiary Guarantor was organized and reorganization assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of Antero Midstream Partners under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, ;
(ii4) immediately after giving effect to such transaction, reorganization no Default or Event of Default exists and exists; and
(iii5) the Company has delivered such reorganization is not adverse to the Trustee an Officers' Certificate and an Opinion Holders of Counsel, each stating the Notes (for purposes of this clause (5) it is stipulated that such consolidation reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way survivor of such a merger, consolidation reorganization (a) is subject to federal or otherwise, state income taxation as an entity or (b) is considered to be an “includible corporation” of all an affiliated group of corporations within the meaning of Section 1504(b) of the Equity Interests of such Subsidiary Guarantor) Code or the Person acquiring the property (in the event of a sale any similar state or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereoflocal law).
Appears in 1 contract
Sources: Indenture (Antero Midstream Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Company nor any Guarantor will consolidate or merge with or into another Person (whether or not the Company or such Issuer Guarantor, as the case may be, is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) the Company or such Issuer Guarantor, as the case may be, is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company or such IssuerGuarantor) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company or a Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company or such Issuer Guarantor, as the case may be, under the Notes or such Guarantor's Guarantee thereof and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to except in the case of a merger of the Company or such transactionGuarantor with or into another Guarantor or a Wholly Owned Restricted Subsidiary of the Company, or a merger of a Guarantor with or into another Person in connection with a Permitted Investment in such Issuer Person, the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
made (e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.A)
Appears in 1 contract
Sources: Indenture (Allied Holdings Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Company nor Holdco may consolidate or merge with or into another Person (whether or not such Issuer the Company or Holdco is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another Person unless: Person, unless (ia) either (A) such Issuer the Company or Holdco is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company or Holdco) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company or Holdco) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company or Holdco, as applicable, under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; , (iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; exists and (ivd) immediately after giving pro forma effect to such transactionthe Company, such Issuer Holdco or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company or Holdco), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made (i) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Holdco and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating its Restricted Subsidiaries immediately prior to such transaction has been satisfied.
transaction. The foregoing clause (bd) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that will not prohibit (i) a merger between Holdco or the reorganization involves Company and a Wholly Owned Subsidiary of Holdco created for the conversion (by merger, sale, contribution or exchange purpose of assets or otherwise) holding the Capital Stock of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the TrusteeHoldco, (ii) immediately after giving effect to such transactiona merger between the Company or Holdco and a Wholly Owned Restricted Subsidiary of Holdco or (iii) a merger between the Company or Holdco and an Affiliate incorporated solely for the purpose of reincorporating the Company or Holdco in another State of the United States so long as, no Default or Event in the case of Default exists clauses (i), (ii), and (iii) ), the Company has delivered to the Trustee an Officers' Certificate amount of Indebtedness of Holdco and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture its Restricted Subsidiaries is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.not
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Issuer shall consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an a Person or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer except in the case of a merger of one of the Issuers with or into a Wholly Owned Subsidiary of Grove Investors or the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the case of such a transaction involving EOTT Finance, will, on the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer Grove Investors has delivered to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or transfer and, if a supplemental indenture is required, other disposition and such supplemental indenture complies with this Indenture and that all conditions precedent therein provided for in this Indenture relating to such transaction has have been satisfied.
(b) complied with. Notwithstanding the foregoing paragraphforegoing, the Company Grove Investors is permitted to reorganize as any other form of entity a corporation in accordance with the procedures established in this IndentureIndenture (and Grove Investors Capital may thereafter liquidate); provided PROVIDED that Grove Investors shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (iand, if applicable, liquidation of Grove Investors Capital) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) is not adverse to Holders of the Company into a form of entity other than a limited liability company formed under Delaware law; Debentures (ii) the entity so formed by or resulting from it being recognized that such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is shall not materially be deemed adverse to the Holders of the Notes Debentures solely because (for purposes of this clause (vi) a reorganization shall not be considered materially adverse to the Holders of the Notes accrual of deferred tax liabilities resulting from such reorganization or (Aii) solely because the successor or survivor of such reorganization surviving corporation (xa) is subject to federal or state income taxation tax as an a corporate entity or (yb) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (Blaw) because there is a Rating Decline due solely to factors and certain other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been are satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company shall not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another corporation, Person unless: or entity unless (i) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of such Issuer the Company under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the TrusteeTrustee and such entity or Person shall have taken all steps necessary or reasonably requested by the Trustee to protect and perfect the Security Interests granted or purported to be granted under the Security Documents; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Company immediately prior to the transaction involving EOTT Financeand (B) shall, will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer has the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, Counsel each stating that (A) such consolidation, merger or transfer and, if a transaction and supplemental indenture is required, such supplemental indenture complies comply with this Indenture Article, and (B) all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; herein provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
complied with; and (cvi) the Company shall have delivered to the Trustee all instruments of further assurance and all actions, as are necessary to maintain, preserve and protect the rights of the Holders of the Notes and the Trustee hereunder and under each of the applicable Security Documents with respect to the Security Interests have been taken. The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than by the Company or its Restricted Subsidiaries of all or substantially all of their respective property or assets to one or more of their Subsidiaries shall not relieve either the Company or the Restricted Subsidiaries from their respective obligations hereunder, under the Notes or under the Security Documents. Subject to the foregoing, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or any other Restricted Subsidiary or other entity that becomes, by reason of such consolidation, merger or transfer, a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Metal Management Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company may not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another Person unless: Person, unless (ia) either (A) such Issuer the Company is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; , (iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; exists and (ivd) immediately after giving pro forma effect to such transaction, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made (i) will, on at the date time of such transaction and after giving pro forma PRO FORMA effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving PRO FORMA effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Company and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating its Restricted Subsidiaries immediately prior to such transaction has been satisfied.
transaction. The foregoing clause (bd) Notwithstanding will not prohibit the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that Merger or (i) a merger between the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) Company and a Wholly Owned Subsidiary of the Company into a form created for the purpose of entity other than a limited liability company formed under Delaware law; (ii) holding the entity so formed by or resulting from such reorganization is an entity organized or existing under the law Capital Stock of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the TrusteeCompany, (ii) immediately after giving effect to such transactiona merger between the Company and a Wholly Owned Restricted Subsidiary or (iii) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as, no Default or Event in the case of Default exists clauses (i), (ii), and (iii) ), the amount of Indebtedness of the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation its Restricted Subsidiaries is not increased thereby. The Company shall not lease all or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of substantially all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the its assets of such Subsidiary Guarantor) will be released and relieved of to any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofPerson.
Appears in 1 contract
Sources: Indenture (Merrill Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, The Issuer shall not directly or indirectly: (1) consolidate, consolidate amalgamate or merge with or into another Person (whether or not such Issuer it is the survivorsurviving corporation) or (2) sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person unless: :
(i) either (A) such Issuer is the surviving entity of such transaction; or (B1) the Person formed by or surviving any such consolidation consolidation, amalgamation or merger (if other than such the Issuer) or to which such sale, assignment, lease, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY"“Surviving Person”) is an entity a Person organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, ; provided that EOTT Finance may if such Surviving Person is not consolidate or merge with or into any entity other than a corporation, a Restricted Subsidiary that is a corporation satisfying such requirement for so long as shall become a co-obligor of the Company remains Notes pursuant to a limited liability company; supplemental indenture;
(ii2) the Surviving Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; Indenture;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transaction, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has shall have delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, Counsel each stating that such consolidation, merger or transfer andamalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if a supplemental indenture is requiredany, such supplemental indenture complies and instrument of assumption, if any, comply with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedIndenture.
(b) Notwithstanding Sections 5.01(a)(1) through (4) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary merging, amalgamating or consolidating with or into the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this IndentureIssuer or another Restricted Subsidiary; provided that or (ib) the reorganization involves transfer of assets between or among the conversion Issuer and one or more of the Restricted Subsidiaries, or between or among the Restricted Subsidiaries. Sections 5.01(a)(3) and (by merger, 4) above shall not apply to the sale, contribution assignment, conveyance, transfer, lease or exchange other disposition of assets all or otherwise) substantially all of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United StatesStates and/or solely for the purpose of forming, any state thereof collapsing or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) dissolving a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedholding company structure.
(c) The provisions Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of Section 4.1 will not apply to the Issuer under this Indenture. In the case of a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assetshowever, between or among the Company and Issuer shall not be released from any of its Wholly-Owned Restricted Subsidiariesthe obligations or covenants under this Indenture.
(d) No Unless the Note Guarantee of the applicable Subsidiary Guarantor shall is permitted to be released in connection with such transaction as described in Section 4.16, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not such Subsidiary Guarantor it is the surviving Person) another Person, whether other than the Issuer or not affiliated with such another Subsidiary Guarantor, unless:
(1) immediately after giving effect to that transaction, no Default or Event of Default exists; and
(2) the Person (if other than the Company Issuer or a Wholly-Owned Restricted Subsidiary, unless (iSubsidiary Guarantor) subject to acquiring the provisions of Section 4.1(e), property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the that Subsidiary Guarantor's Subsidiary Guarantee of the Notes and , as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedindenture.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Forestar Group Inc.)
Merger, Consolidation or Sale of Assets. If and whenever subsequent to the date hereof the Company shall effect: (ai) Neither any reorganization or reclassification or recapitalization of any Common Stock (or any other Shares of the Issuers shallCompany) (other than in the cases referred to in Section 4.2(a)), directly (ii) any consolidation or indirectly, consolidate or merge merger of the Company with or into another Person or (whether iii) the sale, transfer or not such Issuer is other disposition of the survivor) property, assets or sell, assign, transfer, lease, convey or otherwise dispose business of all the Company as an entirety or substantially all of its properties or assetsas an entirety, in one each case as a result of which holders of Common Stock become entitled to receive any Shares or more related transactionsother securities and/or property (including, without limitation, cash (other than in the case referred to another Person unless: in Section 4.2(g)) with respect to or in exchange for the Common Stock, (the transactions referred to in clauses (i), (ii) either and (Aiii) each hereinafter referred to as a “Combination”), then, prior to the consummation of any such Issuer is Combination, the surviving entity Company shall make appropriate provision (in form and substance reasonably satisfactory to the Company and the Required Holders of the Warrants) to insure that each of the Holders shall thereafter have the right to acquire and receive upon proper exercise of the Warrant, in lieu of or addition to (as the case may be) the Common Stock, such shares of stock, securities or assets (including cash) as would have been issued or payable in such Combination (if the holder had exercised the Warrant immediately prior to such Combination) with respect to or in exchange for the number of shares of Common Stock immediately theretofore acquirable and receivable upon exercise of such transaction; or Holder’s Warrant had such Combination not taken place (B) provided that in the Person formed event that in such Combination holders of shares of Common Stock are entitled to elect to receive differing forms of consideration, the consideration that the Holder shall be entitled to receive upon proper exercise of a Warrant shall be the kind and amount of consideration received by or surviving a majority of the shares of Common Stock in such Combination). The Company shall not effect any such consolidation or merger Combination, unless prior to the consummation thereof, the successor entity (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such resulting from consolidation or merger (if other than such Issuer) or the Person to which entity purchasing such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assets assumes all the obligations of such Issuer under the Notes by written instrument (in form and this Indenture pursuant to supplemental indentures in forms substance reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event Company and the Required Holders of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such IssuerWarrants), except in the case obligation to deliver to each such holder such shares of such a transaction involving EOTT Financestock, willsecurities or assets as, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by mergerforegoing provisions, sale, contribution or exchange of assets or otherwise) such holder may be entitled to acquire upon proper exercise of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) Warrant. The provisions of Section 4.1 will not this subsection shall apply similarly and equally to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiariessuccessive Combinations.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company shall not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Senior Notes and this the Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with or into a Wholly Owned Subsidiary of the Company, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Company immediately preceding the transaction involving EOTT Finance, and (B) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness (other than the Indebtedness incurred pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that clauses (i) the reorganization involves the conversion through (by merger, sale, contribution or exchange of assets or otherwiseix) of the Company into a form of entity other than a limited liability company formed under Delaware law; (iithereof) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 4.09 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person; unless: :
(i) either either: (A) such Issuer is the surviving entity of such transactionentity; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, Columbia (provided that EOTT El Paso Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company Partnership remains a limited liability company; partnership);
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in ):
(A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a transaction involving EOTT Finance, willIssuer immediately preceding the transaction; and
(B) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); provided, however, that this clause (B) shall be suspended during any period in which the first paragraph of Section 5.12 hereofPartnership and the Restricted Subsidiaries are not subject to the Suspended Covenants; and and
(vC) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company Partnership is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company Partnership into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations of the Company Partnership under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x1) is subject to federal or state income taxation as an entity or (y2) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will 5.01(a) shall not apply to a merger or consolidation, consolidation or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company Partnership and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than but excluding the Company Partnership or a Wholly-Owned Restricted Subsidiaryanother Subsidiary Guarantor, unless (i) subject to the provisions of Section 4.1(e5.01(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this the Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, and (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation exists. Any Subsidiary Guarantor may be merged or merger and, if a supplemental indenture is required, such supplemental indenture complies consolidated with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.or into any one or more Subsidiary Guarantors. 76
(e) In the event of a sale or other disposition of all or substantially all of the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all or substantially all of the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies Partnership applies the Net Proceeds of such sale or other disposition in accordance with the provisions of Section 5.14 hereofset forth under Sections 3.09 and 4.07.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallBorrower nor any Parent Guarantor will, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not the Borrower or such Issuer Parent Guarantor is the survivorsurviving Person), or (y) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of New Pyxus Topco and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, including in a winddown or liquidation, to another Person (other than in any case in connection with the Corporate Restructuring Transactions or other transactions contemplated by the Plan of Reorganization), unless: :
(a) either:
(i) either (A) the Borrower or such Issuer Parent Guarantor is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; or
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower or such IssuerParent Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other than the Borrower or such Parent Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of the Borrower or such Issuer Parent Guarantor, as applicable, under this Agreement and the Notes and this Indenture other Loan Documents pursuant to supplemental indentures supplements hereto and thereto, as applicable, in forms form and substance reasonably satisfactory to the Trustee; Lead Lender;
(iiic) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(ivd) immediately after giving pro forma effect to such transactionthe Borrower, such Issuer the Parent Guarantor or the Person formed by or surviving any such consolidation or merger (if other than the Borrower or such IssuerParent Guarantor), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made: would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (a) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 10.03(a) hereof or (b) have had a Fixed Charge Coverage Ratio greater than the actual Fixed Charge Coverage Ratio for New Pyxus Topco for such four-quarter period. In addition, New Pyxus Topco will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any other Person. This Section 10.04 will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Borrower, any Parent Guarantors and/or their Restricted Subsidiaries. Clauses (c) and (d) of the first paragraph of this Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 10.04 will not apply to a any merger or consolidationconsolidation of the Borrower or a Parent Guarantor:
(1) with or into one of its Restricted Subsidiaries for any purpose; or
(2) with or into an Affiliate solely for the purpose of reincorporating the Borrower or any Parent Guarantor in another jurisdiction. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between all or among substantially all of the Company and any properties or assets of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company Borrower or a Wholly-Owned Restricted SubsidiaryParent Guarantor in a transaction that is subject to, unless (i) subject to and that complies with the provisions of of, Section 4.1(e)10.04 hereof, the successor Person formed by or surviving any such consolidation or merger (if other than into or with which the Borrower or such Subsidiary Guarantor) shall be an entity organized Parent Guarantor is merged or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under to which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trusteesale, (ii) immediately after giving effect to such transactionassignment, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counseltransfer, each stating such consolidation or merger andlease, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of all the assets of any Subsidiary Guarantorsuch consolidation, by way of merger, consolidation or otherwisesale, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantorassignment, then such Subsidiary Guarantor (in the event of a sale transfer, lease, conveyance or other disposition, by way the provisions of this Agreement referring to the “Borrower” or such “Parent Guarantor” shall refer instead to the successor Person and not to the Borrower or such Parent Guarantor, as applicable), and may exercise every right and power of the Borrower or such Parent Guarantor, as applicable, under this Agreement with the same effect as if such successor Person had been named as the Borrower or such Parent Guarantor, as applicable, herein; provided, however, that the predecessor Borrower or Parent Guarantor, as applicable, shall not be relieved from the obligation to pay the principal of and interest on the Loans except in the case of a merger, consolidation or otherwise, sale of all of the Equity Interests of Borrower’s or such Subsidiary Parent Guarantor) or the Person acquiring the property (’s assets in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released transaction that is subject to, and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of of, Section 5.14 10.04 hereof.
Appears in 1 contract
Sources: Exit Abl Credit Agreement (Pyxus International, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallParent will not, directly or indirectly: (1) consolidate, consolidate merge or amalgamate with or into another Person (whether or not Parent is the surviving entity), or (2) sell, assign, transfer, convey or otherwise dispose of (or permit its Restricted Subsidiaries to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties or assets of Parent and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(1) either: (a) Parent is the surviving entity; or (b) the Person formed by or surviving any such consolidation or merger (if other than Parent) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia or Canada or any political subdivision thereof;
(2) the Person formed by or surviving any such consolidation, merger or amalgamation (if other than Parent) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Parent under the Notes, Parent’s Note Guarantee and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) Parent or the Person formed by or surviving any such consolidation, merger or amalgamation (if other than Parent), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period either (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (ii) have a Fixed Charge Coverage Ratio that is equal to or greater than the Fixed Charge Coverage Ratio of Parent immediately prior to such consolidation, merger, sale, assignment, transfer, conveyance or other disposition.
(b) This Section 5.01 shall not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Parent and its Restricted Subsidiaries. Clauses (3) and (4) of Section 5.01(a) hereof will not apply to any merger, consolidation or amalgamation of Parent (1) with or into one of its Restricted Subsidiaries for any purpose or (2) with or into an Affiliate solely for the purpose of reincorporating Parent in another jurisdiction. Parent shall be deemed to be the surviving entity in the event of an amalgamation of either that is governed by the laws of Canada or a province thereof.
(c) Neither Issuer will, directly or indirectly: (1) consolidate, merge or amalgamate with or into another Person (whether or not such Issuer is the survivorsurviving entity), or (2) or sell, assign, transfer, leaseconvey or otherwise dispose of (or permit its Restricted Subsidiaries to sell, assign, transfer, convey or otherwise dispose of of) all or substantially all of its the properties or assetsassets of such Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person, unless:
(1) either: (i) either (Aa) such Issuer is the surviving entity of such transactionentity; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof of the United States or the District of ColumbiaColumbia or Canada or any political subdivision thereof; and, provided that EOTT Finance may if such entity is not consolidate or merge with or into any entity other than a corporation, a co-obligor of the Notes is a corporation satisfying organized or existing under any such requirement for so long as the Company remains a limited liability company; laws;
(ii2) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms form reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, willParent would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, period either (i) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) herein or (ii) have a Fixed Charge Coverage Ratio that is equal to or greater than the first paragraph Fixed Charge Coverage Ratio of Section 5.12 hereof; and (v) such Issuer has delivered Parent immediately prior to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiariesdisposition.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. Unless otherwise specified in respect of a series of Securities, neither the Company nor any Guarantor will (ai) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person or (whether or not such Issuer is the survivorii) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its or its subsidiaries’ properties or assetsassets taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i) either (A) The Company or such Issuer is Guarantor, as the case may be, shall be the surviving entity of such transactionPerson; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company or such IssuerGuarantor, as the case may be) or the Person to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have has been made assumes all the obligations of such Issuer is a corporation, partnership or limited liability company organized or existing under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to laws of the Trustee; United States, any state of the United States or the District of Columbia;
(iiib) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Company or such Issuer)Guarantor, except as the case may be) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all of the Company’s obligations or the obligations of such Guarantor, as the case may be, under the Securities and this Indenture pursuant to a supplemental indenture or other agreements delivered to the Trustee;
(c) immediately after such transaction, no Default or Event of Default exists (other than in the case of: (i) the Company’s merger, or the merger of such a transaction involving EOTT FinanceGuarantor, willas the case may be, on with an affiliate solely for the date purpose of reincorporating in another jurisdiction; (ii) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company, the Guarantors or any Subsidiary); and
(d) the Company or such transaction after giving pro forma effect thereto and any related financing transactions Guarantor, as if such transaction had occurred at the beginning of the applicable four-quarter periodcase may be, shall have delivered, or cause to be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered delivered, to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution transfer, conveyance, lease or exchange other disposition complies with the requirements of assets or otherwise) this Indenture, and an Opinion of Counsel stating that the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) Securities, the entity so formed by or resulting from such reorganization is an entity organized or existing under Indenture and the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the Guarantees constitute valid and binding obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because or, if applicable, the successor or survivor of company) and such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within Guarantors. Notwithstanding the meaning of foregoing, the limitations set forth in this Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will 5.01 shall not apply to a merger or consolidation(a) any Guarantor to the extent such Guarantor is released from its obligations under its Guarantee pursuant to Section 10.09 hereunder, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) any asset sales that are permitted under the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedBank Credit Agreement.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. The Company may not: (a1) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivorsurviving corporation); or (2) 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 another Person unless: (i) either either: (A) such Issuer the Company is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state State thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transaction, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made: (A) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof4.09; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the foregoing paragraph, beginning of the Company is permitted to reorganize as any other form of entity in accordance with applicable four-quarter period) than the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) Fixed Charge Coverage Ratio of the Company into and its subsidiaries immediately prior to the transaction. The preceding clause (D) shall not prohibit (a) a form merger between the Company and a Wholly Owned Subsidiary; or (b) a merger between the Company and an Affiliate incorporated solely for the purpose of entity other than a limited liability company formed under Delaware law; (ii) reincorporating the entity so formed by or resulting from such reorganization is an entity organized or existing under the law Company in another state of the United States; so long as, any state thereof or in each case, the District amount of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations Indebtedness of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization its Restricted Subsidiaries is not materially adverse increased thereby. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to the Holders of the Notes (for purposes of this clause (v) a reorganization any other Person. This Section 5.01 shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply applicable to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company and any of its Wholly-Wholly Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Team Health Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallAn Issuer shall not, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving Person); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of such Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person; unless: :
(i) either either: (Ax) such Issuer is the surviving entity of such transactionPerson; or (By) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all of the obligations of such Issuer under the Notes and this First Supplemental Indenture pursuant to a supplemental indentures in forms indenture reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and
(iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made (x) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and 4.05, or (vy) such Issuer has delivered would have a lower Leverage Ratio immediately after the transaction, after giving pro forma effect to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, transaction as if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such the transaction has been satisfied.
(b) Notwithstanding had occurred at the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) beginning of the Company into applicable four quarter period, than the Company's Leverage Ratio immediately prior to the transaction. The preceding clause (iv) shall not prohibit: (x) a form merger between an Issuer and one of entity other than such Issuer's Wholly Owned Restricted Subsidiaries; or (y) a limited liability company formed under Delaware law; (ii) merger between an Issuer and one of such Issuer's Affiliates incorporated solely for the entity so formed by or resulting from such reorganization is an entity organized or existing under the law purpose of reincorporating in another state of the United States. In addition, an Issuer shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) Person. The provisions of this Section 4.1 will 5.01 shall not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company an Issuer and any of its Wholly-Wholly Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: First Supplemental Indenture (Entercom Communications Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer shall not, directly or indirectly, (x) consolidate or merge with or into another Person (whether or not such the Issuer is the survivor), or (y) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person Person, unless: :
(i1) either (Aa) such the Issuer is the surviving entity of such transaction; Person or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that at any time such surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(2) the "SUCCESSOR COMPANY"Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either
(A) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Ratio of the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, is equal to or greater than the Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; and
(5) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and such supplemental indenture, if any, comply with this Indenture.
(b) Notwithstanding the restrictions described in Sections 5.01(a)(3), 5.01(a)(4) or 5.01(a)(5), (i) any Restricted Subsidiary of the Issuer may consolidate with or merge into the Issuer and (ii) the Issuer may consolidate with or merge into or dispose all or substantially all of its properties or assets to any Guarantor; and the Issuer, in the case of clause (i) or (ii), will not be required to comply with Sections 5.01(a)(3), 5.01(a)(4) or 5.01(a)(5) in connection with any such consolidation, merger or disposition.
(c) Notwithstanding Section 5.01(a), the Issuer may reorganize as any other form of entity in accordance with the following procedures:
(1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Issuer into a form of entity other than a corporation formed under Delaware law;
(2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.;
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii3) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture or other agreement in forms a form reasonably satisfactory to the Trustee; ;
(iv4) immediately after such reorganization no Default or Event of Default exists; and
(v5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (v5) a reorganization shall will not be considered materially adverse to the Holders or Beneficial Owners of the Notes (A) solely because the successor or survivor of such reorganization (xa) is subject to federal or state income taxation as an entity or (yb) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i1504(b) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary A Guarantor shall may not sell or otherwise dispose of, in one or a series of related transactions, all or substantially all of its properties or assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company Issuer or a Wholly-Owned Restricted Subsidiaryanother Guarantor, unless unless:
(i1) subject immediately after giving effect to the provisions such transaction or series of Section 4.1(e)related transactions, no Default or Event of Default exists; and
(2) either:
(A) the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary the Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and unconditionally assumes all the obligations of such Subsidiary that Guarantor pursuant to the Subsidiary Guarantor's Subsidiary under its Guarantee of the Notes and this Indenture pursuant to a supplemental indenture or other agreement in form reasonably satisfactory to the Trustee; or
(B) such transaction or series of transactions does not violate Section 4.10. In case of any such consolidation, (ii) immediately after giving effect to such transactionmerger, no Default sale or Event of Default exists other disposition and (iii) upon the Company has assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee an Officers' Certificate and an Opinion satisfactory in form to the Trustee, of Counsel, each stating such consolidation or merger and, if a supplemental indenture is requiredthe Guarantee of the Guarantor and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such supplemental indenture complies successor Person will succeed to and be substituted for the Guarantor with this Indenture and all conditions precedent therein relating to such transaction have the same effect as if it had been satisfiednamed herein as a Guarantor.
(e) In For purposes of this Section 5.01, the event of a transfer (by lease, assignment, sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, in a single transaction or a sale or other disposition series of transactions) of all or substantially all of the Equity Interests properties or assets of any Subsidiary Guarantorone or more Restricted Subsidiaries of the Issuer, then such Subsidiary Guarantor the Capital Stock of which constitutes all or substantially all of the properties or assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Issuer.
(in the event f) Any reference herein to a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a sale limited liability company, limited partnership or other disposition, by way trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation consolidation, amalgamation, assignment, sale, disposition or otherwisetransfer, or similar term, as applicable, to, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event with a separate Person. Any division of a sale limited liability company, limited partnership or other disposition of all the assets of such Subsidiary Guarantor) will be released trust shall constitute a separate Person hereunder (and relieved each division of any obligations under its Subsidiary Guarantee; provided limited liability company, limited partnership or trust that the transaction complies with the provisions of Section 5.14 hereofis a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer will not, directly or indirectly, : (i) consolidate or merge with or into another Person Person; or (whether or not such Issuer is the survivorii) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the Issuer’s properties or assets, assets (determined on a consolidated basis for the Issuer and the Restricted Subsidiaries) in one or more related transactions, transactions to another Person Person, unless: :
(i1) either either:
(A) such the Issuer is the surviving entity of such transactionentity; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, ; provided that EOTT Finance may not consolidate at any time such Person is a partnership or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; , there shall be a co-issuer of the Notes that is a corporation organized or existing under the laws of any such jurisdiction;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such the Issuer under the Notes and Notes, this Indenture and the Notes Collateral Documents pursuant to a supplemental indentures in forms indenture or other agreement reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transaction, such (A) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodmost recently ended four full fiscal quarters for which internal financial statements are available, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09(a) hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.or
Appears in 1 contract
Sources: Indenture (WESTMORELAND COAL Co)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer will not, directly or indirectly: (1) consolidate, consolidate amalgamate, merge or merge otherwise combine with or into another Person (whether or not such the Issuer is the survivorsurviving corporation); or (2) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assetsthe assets of the Issuer, in one or more related transactions, to another Person Person, unless: :
(i) either either: (A1) such Wind or the Issuer is the surviving entity of such transactionor continuing Person; or (B2) the Person formed by or surviving any such consolidation consolidation, merger, amalgamation or merger combination (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made complies with Section 4.21 prior to and after such transaction and is a Person (the "SUCCESSOR COMPANY"in corporate or company form, including substantially similar organizational forms under relevant law) is an entity organized or existing under the laws of any member state of the Pre-Expansion European Union, the laws of the United States, any state thereof of the United States or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) the Person formed by or surviving any such consolidation consolidation, merger, amalgamation or merger combination (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such the Issuer under the Notes and Notes, this Indenture Indenture, the Priority Agreement (or any additional intercreditor agreement or priority agreement entered into pursuant to supplemental indentures in forms reasonably satisfactory the terms of the Priority Agreement or this Indenture) and the Security Documents to which the Issuer is a party other than, to the Trusteeextent such surviving entity is Wind, the obligations of the Issuer described under Section 4.21; and
(iii) immediately after giving pro forma such transaction, no Default or Event of Default exists and the Security Documents and the Liens created on the Collateral (other than, to the extent the surviving entity is Wind, the assignment of any Intercompany Loan; provided that such Intercompany Loan is cancelled or otherwise could have been incurred by Wind at the time of such transaction pursuant to Section 4.09) shall remain in full force and effect, shall have been transferred to such surviving entity and shall have been perfected and be in full force and effect or otherwise released in accordance with the terms of this Indenture.
(b) Wind will not, directly or indirectly: (1) consolidate, merge, amalgamate or combine with or into another Person (whether or not Wind is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the assets of Wind and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (1) Wind is the surviving or continuing Person; or (2) the Person formed by or surviving any such consolidation, merger, amalgamation or combination (if other than Wind) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (the “Successor Company”) is a Person (in corporate or company form, including substantially similar organizational forms under relevant law) organized or existing under the laws of any member state of the Pre-Expansion European Union, the laws of the United States, any state of the United States or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation, merger, amalgamation or combination (if other than Wind) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of Wind under any Intercompany Loan, this Indenture, the Note Guarantee, the Priority Agreement (or any additional intercreditor agreement or priority agreement entered into pursuant to the terms of the Priority Agreement or this Indenture) and/or the Security Documents;
(iii) immediately after such transaction, no Default or Event of Default exists; and
(iv) immediately after giving pro forma effect to such transaction, such Issuer Wind or the Person formed by or surviving any such consolidation consolidation, merger, amalgamation or merger combination (if other than such IssuerWind), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter periodtransactions, (a) be permitted to Incur incur at least $€1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Consolidated Leverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v4.09(a) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted have a Consolidated Leverage Ratio not greater than what such ratio was immediately prior to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating giving effect to such transaction have been satisfiedtransaction.
(c) The provisions In addition, neither the Issuer nor any Guarantor (including Wind) will, directly or indirectly, lease all or substantially all of Section 4.1 will not apply the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted SubsidiariesPerson.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or Section 5.01(b)(iv) will not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless apply to:
(i) subject to a merger of Wind with an Affiliate for the provisions primary purpose of Section 4.1(e)reincorporating Wind, as the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United Statescase may be, any state thereof or the District of Columbia or the laws of the in another jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, for tax reasons;
(ii) immediately after giving effect a Restricted Subsidiary of Wind consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of assets to such transaction(a) Wind or any Restricted Subsidiary of Wind that is a Guarantor or the Issuer or, no Default (b) with respect to a Restricted Subsidiary of Wind that is not a Guarantor or Event of Default exists and the Issuer, another Restricted Subsidiary; or
(iii) the Company has delivered Wind consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or substantially all of its assets to the Trustee an Officers' Certificate and an Opinion Parent or the Parent consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of Counselall or substantially all of its assets to Wind. Following any such merger, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such any transaction which would have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies permitted with the provisions of Section 5.14 hereofParent shall be permitted to be undertaken with WIND Telecom S.p.A.
Appears in 1 contract
Sources: Indenture (VimpelCom Ltd.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Borrower will not, directly or indirectly: (a) consolidate or merge with or into another Person (whether or not the Borrower is the surviving corporation); or (b) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(i) either (A) the Borrower is the surviving corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Borrower under the Loan Documents pursuant to joinder agreements or other documents and agreements reasonably satisfactory to the Administrative Agent, and such Person or the Borrower has delivered to the Administrative Agent and each Lender (x) any documentation and other information about such Person as shall have been reasonably requested in writing by the Administrative Agent or any Lender that the Administrative Agent or such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act and (y) to the extent such Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Person,;
(iii) immediately after such transaction, no Default or Event of Default exists and no Change of Control shall have occurred; and
(a) the Consolidated Total Secured Leverage Ratio of the Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Borrower) as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.04(a) and 5.04(b), as measured on a pro forma basis immediately after giving effect to such consolidation or merger and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period does not exceed 5.00 to 1.00 and (b) the Fixed Charge Coverage Ratio of the Borrower or the Person formed by or surviving any such consolidated or merger (if other than the Borrower) is at least 2.00 to 1.00 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.04(a) and 5.04(b) as measured immediately after giving effect to such consolidation or merger.
(b) The Borrower will not permit any Restricted Subsidiary to (x) consolidate or merge with or into another Person (whether or not such Issuer Restricted Subsidiary is the survivorsurviving corporation); or (y) 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 another Person unlessPerson; except: 132 US-DOCS\104110541.24
(i) any Restricted Subsidiary may merge into or consolidate or amalgamate with any Loan Party, so long as either (A) such Issuer the Loan Party is the surviving entity of such transaction; or (B) such surviving entity becomes a Loan Party substantially concurrently with the Person formed by consummation of such transaction and complies with Section 5.09;
(ii) any Restricted Subsidiary that is not a Loan Party may merge into or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge amalgamate with (A) any other Restricted Subsidiary that is not a Loan Party or into (B) any entity other than a corporation satisfying such requirement for Loan Party so long as such Loan Party is the Company remains a limited liability company; (ii) the surviving entity or such surviving Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all assume the obligations of the Company applicable Loan Party hereunder and under the Notes and this Indenture Loan Documents;
(iii) any Person may merge into or consolidate or amalgamate with any Restricted Subsidiary that is a Subsidiary Guarantor in connection with an Investment in such Person pursuant to supplemental indentures in forms reasonably satisfactory to clause (f) of the Trustee; definition of Permitted Investments;
(iv) immediately after such reorganization no Default any Restricted Subsidiary may sell, assign, transfer, convey or Event otherwise dispose of Default exists; (v) such reorganization is not materially adverse all or substantially all of its properties or assets, in one or more related transactions to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes any (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law Loan Party or (B) because there is to any Person that becomes a Rating Decline due solely to factors other than Loan Party substantially concurrently with the reorganization); consummation of such transaction and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and Section 5.09; and
(v) any Restricted Subsidiary that is not a Loan Party may sell, assign, transfer, convey or otherwise dispose of all conditions precedent therein relating or substantially all of its properties or assets, in one or more related transactions to such transaction have been satisfiedany Restricted Subsidiary that is not a Loan Party.
(c) The provisions In addition, neither the Borrower nor any Restricted Subsidiary shall, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person except, in the case of a Restricted Subsidiary:
(i) the Borrower or any Loan Party;
(ii) any Person that becomes a Loan Party substantially concurrently with the consummation of such transaction and complies with Section 4.1 will 5.09;
(iii) any Restricted Subsidiary that is not a Loan Party may directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to another Restricted Subsidiary that is not a Loan Party.
(d) This Section 6.08 shall not apply to (i) a merger of the Borrower with an Affiliate solely for the purpose of reincorporating the Borrower in another jurisdiction or forming a direct holding company of the Borrower; (ii) a merger of a Restricted Subsidiary with an Affiliate solely for the purpose of reincorporating such Restricted Subsidiary in another jurisdiction or forming a direct holding company of such Restricted Subsidiary; and (iii) any sale, transfer, assignment, conveyance, lease or other disposition of assets between or among the Borrower and the Subsidiary Guarantors, including by way of merger or consolidation.
(e) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between all or among the Company and any substantially all of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released Borrower and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.133 US-DOCS\104110541.24
Appears in 1 contract
Sources: Revolving Credit Agreement
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallCompany nor any Guarantor may, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not the Company or such Issuer Guarantor, as the case may be, is the survivorsurviving corporation) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Company or any Guarantor, in one or more related transactions, to another Person Person, unless: :
(i) either either
(A) the Company or such Issuer is Guarantor, as the surviving entity of such transactioncase may be, shall be the Surviving Person; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company or such IssuerGuarantor, as the case may be) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity shall be a corporation organized or and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) except as otherwise described with respect to the release of Subsidiary Guarantees of Guarantors pursuant to Article 10, the Person formed by or surviving any such consolidation or merger (if other than the Company or such IssuerGuarantor, as the case may be) or the Person to which such sale, assignment, transfer, lease, transfer conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to assumes, by supplemental indentures indenture in forms form reasonably satisfactory to the Trustee; , executed and delivered to the Trustee by such Person, the obligations of the Company or such Guarantor, as the case may be, under this Indenture, the Notes and the Subsidiary Guarantees;
(iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv) immediately after giving pro forma effect except with respect to a consolidation or merger of the Company with or into a Guarantor, or a Guarantor with or into another Guarantor, the Company or such transactionGuarantor, such Issuer as the case may be, or the Person formed by or surviving any such consolidation or merger (if other than the Company or such IssuerGuarantor), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09(a) hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraphpreceding clause (iv), the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) Restricted Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets to the Company or a form of entity other than a limited liability company formed under Delaware law; Guarantor, and notwithstanding the preceding clause (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States), any state thereof or Guarantor may transfer real property that is the District subject of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture a HUD Financing to a HUD Financing Subsidiary in connection with a HUD Financing permitted to be incurred pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied4.09.
(c) The provisions Company may not, directly or indirectly, lease all or substantially all of Section 4.1 will not apply to a merger its properties or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between in one or among the Company and more related transactions, to any of its Wholly-Owned Restricted Subsidiariesother Person.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer shall not consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) such the Issuer is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or and existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer) ), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made, assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, such the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the case of such a transaction involving EOTT Finance, will, on the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof and (vB) have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer has delivered and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, Counsel each stating of which shall state that such consolidation, merger or transfer and, if a supplemental indenture is required, and such supplemental indenture complies comply with this Indenture Article 5 and that all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; herein provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedcomplied with.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer may not consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (ia) either (A) such the Issuer is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (iib) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; , (iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; exists and (ivd) immediately after giving pro forma effect to such transaction, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made (i) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately prior to such transaction. The foregoing clause (vd) such will not prohibit (a) a merger between the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion Affiliate of Counselthe Issuer created for the purpose of holding the Capital Stock of the Issuer, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding a merger between the foregoing paragraph, Issuer and a Wholly Owned Restricted Subsidiary or (c) a merger between the Company is permitted to reorganize as any other form Issuer and an Affiliate incorporated solely for the purpose of entity reincorporating the Issuer in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law another State of the United StatesStates so long as, any state thereof or in each case, the District amount of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations Indebtedness of the Company under the Notes Issuer and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization its Restricted Subsidiaries is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization increased thereby. The Issuer shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor lease all or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and substantially all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiariesassets to any Person.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. Neither the Company nor either Issuer will: (a) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not the Company or such Issuer Issuer, as applicable, is the survivorsurviving corporation), or (b) or in the case of the Company and the Issuer (but not the Co-Issuer), sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) the Company or such Issuer Issuer, as applicable, is the surviving entity of such transactioncorporation; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company or such Issuer, as applicable) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof of the United States or the District of ColumbiaColumbia (such Person, provided that EOTT Finance may the “Surviving Entity”) and, if such entity is not consolidate or merge with or into any entity other than a corporation, a co-obligor of the Notes is a corporation satisfying organized or existing under any such requirement for so long as the Company remains a limited liability company; laws;
(ii2) the Person formed by or surviving any such consolidation or merger Surviving Entity (if other than the Company or such Issuer, as applicable) or the Person to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have has been made assumes all the obligations of the Company or such Issuer under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indentures indenture in forms form reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Financewith respect to the Company or the Issuer (but not the Co-Issuer), willthe Company or the Surviving Entity (if other than the Company or the Issuer) would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the as Ratio Debt or (ii) have had a Fixed Charge Coverage Ratio test set forth in equal to or greater than the first paragraph of Section 5.12 hereof; and actual Fixed Charge Coverage Ratio for the Company for such four-quarter period;
(v5) the Company or such Issuer has delivered Issuer, as applicable, shall deliver, or cause to be delivered, to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, each stating to the effect that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution conveyance, assignment, transfer, lease or exchange other disposition complies with the requirements of this Indenture;
(6) to the extent any assets or otherwise) of the Company Person which is merged, consolidated or amalgamated with or into a form the Surviving Entity are assets of entity other than a limited liability company formed the type which would constitute Collateral under Delaware lawthe Security Documents, the Surviving Entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(ii7) the entity so formed Collateral owned by or resulting from such reorganization is an entity organized or existing transferred to the Surviving Entity shall: (a) continue to constitute Collateral under this Indenture and the law Security Documents, (b) be subject to the Lien in favor of the United States, any state thereof or Collateral Agent for the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations benefit of the Company under the Notes Trustee and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); Notes, and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of not be subject to any Lien other than Permitted Liens. This Section 4.1 5.01 will not apply to a merger or consolidation, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets, assets between or among the Company and any one or more of its Wholly-Owned Restricted Subsidiaries or between or among any one or more of the Company’s Restricted Subsidiaries.
. Clauses (d3) No and (4) of this Section 5.01 will not apply to (a) any merger or consolidation of any Restricted Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or either Issuer or (b) a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by merger or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof Company or either Issuer with or into an Affiliate for the District purpose of Columbia reincorporating the Company or such Issuer in another jurisdiction so long as the laws amount of Indebtedness of the jurisdiction under which such Subsidiary Guarantor was organized Company and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture its Restricted Subsidiaries is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiednot increased thereby.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Forterra, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, may: (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving entity); or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) such Issuer is the surviving entity of such transactionentity; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided however, that EOTT Finance Corp. may not consolidate or merge with or into any entity Person other than a corporation satisfying such requirement for so long as the Company remains Antero Midstream Partners is not a limited liability company; corporation;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and any Registration Rights Agreement then in effect pursuant to a supplemental indentures indenture in forms form reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transactionin the case of a transaction involving Antero Midstream Partners and not Finance Corp., such Issuer Antero Midstream Partners or the Person formed by or surviving any such consolidation or merger (if other than such IssuerAntero Midstream Partners), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, lease, conveyance or other disposition has been made, will on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, Reference Period:
(A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) have a Fixed Charge Coverage Ratio not less than the first paragraph Fixed Charge Coverage Ratio of Section 5.12 hereofAntero Midstream Partners immediately prior to such transaction; and and
(v5) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies (if any) comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied. provided that this Section 5.01 will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Antero Midstream Partners and its Restricted Subsidiaries, provided further that Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of Antero Midstream Partners (A) with or into one of its Restricted Subsidiaries for any purpose or (B) with or into an Affiliate solely for the purpose of reorganizing Antero Midstream Partners in another jurisdiction.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company is Antero Midstream Partners will be permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company Antero Midstream Partners into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia Columbia;
(3) the entity so formed by or the laws of the jurisdiction under which resulting from such Subsidiary Guarantor was organized and reorganization assumes all the obligations of such Subsidiary Guarantor pursuant to Antero Midstream Partners under the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and Notes, this Indenture and any Registration Rights Agreement then in effect pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, ;
(ii4) immediately after giving effect to such transaction, reorganization no Default or Event of Default exists and exists; and
(iii5) the Company has delivered such reorganization is not adverse to the Trustee an Officers' Certificate and an Opinion Holders of Counsel, each stating the Notes (for purposes of this clause (5) it is stipulated that such consolidation reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way survivor of such a merger, consolidation reorganization (a) is subject to federal or otherwise, state income taxation as an entity or (b) is considered to be an “includible corporation” of all an affiliated group of corporations within the meaning of Section 1504(b) of the Equity Interests of such Subsidiary Guarantor) Code or the Person acquiring the property (in the event of a sale any similar state or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereoflocal law).
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company may not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another Person unless: Person, unless (ia) either (A) such Issuer the Company is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; , (iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; exists and (ivd) immediately after giving pro forma effect to such transaction, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made (i) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Company and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating its Restricted Subsidiaries immediately prior to such transaction has been satisfied.
transaction. The foregoing clause (bd) Notwithstanding will not prohibit the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that Acquisition or (i) a merger between the reorganization involves Company and a 58 Wholly Owned Restricted Subsidiary or (ii) a merger between the conversion (by mergerCompany and an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as, salein each case, contribution or exchange the amount of assets or otherwise) Indebtedness of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization its Restricted Subsidiaries is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization increased thereby. The Company shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor lease all or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and substantially all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiariesassets to any Person.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Condor Systems Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the The Issuers shall, directly or indirectly, may not consolidate or merge with or into another Person (whether or not such Issuer is the survivor) Issuers are the surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its their properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the entity or the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or and existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance FCC may not consolidate or merge with or into any entity other than a corporation satisfying such requirement requirements for so long as the Company Foamex remains a limited liability companypartnership; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of an Issuer with or into one of its Wholly Owned Restricted Subsidiaries, such the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a Issuer immediately preceding the transaction involving EOTT Financeand (B) shall, will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.9 hereof; and (v) such Issuer has delivered to . In the Trustee an Officers' Certificate and an Opinion case of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, lease, transfer, lease, conveyance or other disposition of assets, between all or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws substantially all of the United Statesassets of an Issuer, any state thereof or upon the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture assumption provided for in form reasonably satisfactory to the Trustee, clause (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is requiredabove, such supplemental indenture complies with Issuer shall be discharged from all further liability and obligation under this Indenture and all conditions precedent therein relating to such transaction have been satisfiedIndenture.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Foamex Capital Corp)
Merger, Consolidation or Sale of Assets. An Issuer may not: (a1) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving corporation); or (2) 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 another Person unless: (i) either either: (A) such an Issuer is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such an Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state State thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such an Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the applicable Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv)
(a) immediately after giving pro forma effect to such transaction, such an Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such an Issuer), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof4.09; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" Fixed Charge Coverage Ratio of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code Issuer or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation consolidation, amalgamation or merger (if other than an Issuer), or to which such Subsidiary Guarantorsale, assignment, transfer, conveyance or other disposition has been made, after giving effect to the transaction and any related financings, would not be less than the Fixed Charge Coverage Ratio of such Issuer immediately prior to such transaction. The preceding clause (iv) shall be not prohibit (a) a merger between an entity organized Issuer and a Restricted Subsidiary that is a Wholly Owned Subsidiary of such Issuer; or existing under (b) a merger between an Issuer and an Affiliate incorporated solely for the laws purpose of reincorporating such Issuer in another state of the United States; so long as, any state thereof or in each case, the District amount of Columbia or the laws Indebtedness of the jurisdiction under which such Subsidiary Guarantor was organized Issuers and assumes all their respective Restricted Subsidiaries is not increased thereby. The preceding paragraph will not prohibit the obligations sale of EmCare HoldCo substantially in its entirety that otherwise complies with the other provisions of this Indenture including Section 4.10; provided that (i) the proceeds of such Subsidiary Guarantor pursuant transaction are contributed, transferred or otherwise applied for the benefit of AMR HoldCo to the Subsidiary Guarantor's Subsidiary Guarantee extent required by Section 4.10 of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, and (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of does not constitute a sale sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Issuers and their Subsidiaries taken as a whole. In addition, an Issuer may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any Subsidiary Guarantorother Person. This Section 5.01 shall not be applicable to a sale, by way of mergerassignment, consolidation or otherwisetransfer, or a sale conveyance or other disposition of all assets between or among the Equity Interests Issuers and any of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided their Restricted Subsidiaries that the transaction complies with the provisions of Section 5.14 hereofare Wholly Owned Restricted Subsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallACEP shall not, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not such Issuer ACEP is the survivorsurviving corporation); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of ACEP and its Subsidiaries taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) such Issuer ACEP is the surviving entity of such transactioncorporation; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such IssuerACEP) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof of the United States or the District of ColumbiaColumbia (such Person, provided that EOTT Finance as the case may be, being herein called the “Successor Issuer”); and, if such entity is not consolidate or merge with or into any entity other than a corporation, a co-obligor of the notes is a corporation satisfying organized or existing under any such requirement for so long as the Company remains a limited liability company; laws;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made Successor Issuer assumes all the obligations of such Issuer ACEP under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee and under the Security Documents pursuant to agreements reasonably satisfactory to the Collateral Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect such transaction would not result in the loss or suspension or material impairment of any of ACEP’s or any Guarantor’s Material Gaming Licenses, unless a comparable replacement Gaming License is effective prior to or simultaneously with such loss, suspension or material impairment:
(5) such transaction would not require any Holder or Beneficial Owner of Notes in their capacity as such to obtain a Gaming License or be qualified or found suitable under the law of any applicable gaming jurisdiction; provided that such Holder or Beneficial Owner would not have been required to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger ; and
(if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v6) such Issuer ACEP has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, subject to customary assumptions and exclusions, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture transaction complies with the terms of this Indenture Indenture. In addition, ACEP will not, directly or indirectly, lease all or substantially all of the properties and all conditions precedent therein relating assets of it and its Subsidiaries taken as a whole, in one or more related transactions, to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Person. This Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 5.01 will not apply to a merger or consolidation, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets, assets between or among the Company ACEP and any its Subsidiaries. Clause (3) of its Wholly-Owned Restricted Subsidiaries.this Section 5.01 will not apply to:
(d1) No Subsidiary Guarantor shall consolidate with any merger or merge consolidation of ACEP with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions one of Section 4.1(e), the Person formed by or surviving its Subsidiaries for any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.purpose; or
(e2) In with or into an Affiliate solely for the event purpose of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (reincorporating ACEP in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofanother jurisdiction.
Appears in 1 contract
Sources: Indenture (American Casino & Entertainment Properties LLC)
Merger, Consolidation or Sale of Assets. (a) Neither It shall be a condition precedent to the merger of Lessee into another corporation, to the Issuers shallconsolidation of Lessee with one or more other corporations and to the sale or other disposition, directly or indirectly, of all or substantially all the assets of Lessee in any one or more transactions to one or more other persons or entities (each of the foregoing, a “Merger Event”) that (x) the surviving entity or transferee of assets, as the case may be (the “Transferee”) (i) shall be a corporation duly organized and validly existing in good standing under the laws of the United States of America or any State thereof, provided that after the Bond Date, the surviving entity or transferee of assets may be an entity duly organized and validly existing in good standing under the laws of the jurisdiction in which such entity is organized, (ii) if the Transferee shall be an entity other than Lessee, shall have a net worth after giving effect to such Merger Event at least equal to or better than that of Lessee as of the date immediately prior to such Merger Event and (iii) if the Transferee shall be an entity other than Lessee, shall deliver to Lessor and the Mortgagee an acknowledged instrument in recordable form and otherwise in form and substance reasonably satisfactory to Lessor expressly assuming all obligations, covenants and responsibilities of Lessee hereunder and under any instrument executed by Lessee relating to the Premises or this Lease, including without limitation, consenting to the assignment of Lessor’s interest in this Lease to the Mortgagee as security for indebtedness, (y) immediately after giving effect to such transaction (and such assumption), no event of default shall exist hereunder or under any such assignment, and (z) Lessee shall have delivered a certificate of its chief financial officer and an opinion reasonably satisfactory in scope and substance to Lessor of the senior legal officer of Lessee (or such other counsel reasonably satisfactory to Lessor), each stating that such transaction and such instrument of assumption comply with this Section 7.05. Lessee covenants that it will not so merge or consolidate or merge with or into another Person (whether or not such Issuer is the survivor) or sell, assign, transfer, lease, convey sell or otherwise dispose of all or substantially all of its properties assets unless such an instrument shall have been so delivered and the provisions of this Section 7.05 shall have otherwise been duly complied with. In any event, the Transferee (if other than Lessee) shall be deemed to have assumed all such obligations, covenants and responsibilities upon such merger, consolidation or assetssale or other disposition. Notwithstanding the foregoing, in one or more related transactionsafter the Bond Date, to another Person unless: (i) either (A) Lessee shall deliver the documents described in clause (z) above within 60 days following the event requiring the same, but such Issuer is the surviving entity of documents shall not be a condition precedent to such transaction; or event, and (B) the Person formed by or surviving any phrase “such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition an instrument shall have been made (so delivered and” and the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except word “otherwise” in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the sentence following clause (z) beginning of the applicable four-quarter period, with “Lessee covenants that it will not ....” shall be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfieddeleted.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as Lessor agrees that it will not engage in any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors business other than the reorganization)acquisition, ownership and leasing of the Premises; provided, however, that this provision shall bind only the original Lessor and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion not any transferee of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition part of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (Lessor’s interest in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofPremises.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer will not, directly or indirectly, : (i) consolidate or merge with or into another Person Person; or (whether or not such Issuer is the survivorii) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the Issuer’s properties or assets, assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) in one or more related transactions, transactions to another Person Person, unless: :
(i1) either either:
(A) such the Issuer is the surviving entity of such transactionentity; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, ; provided that EOTT Finance may not consolidate at any time such Person is a partnership or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; , there shall be a co-issuer of the Notes that is a corporation that also satisfies the requirements of this Section 5.01;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer the Issuer, as the case may be, under the Notes and Notes, this Indenture and the Notes Collateral Documents pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transaction, such (A) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09(a) hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.or
Appears in 1 contract
Sources: Indenture (Walter Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallIssuer will, directly or indirectly, : (a) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving corporation); or (b) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its respective properties or assetsassets taken as a whole, in one or more related transactions, to another Person Person, unless:
(1) either: (i) either (Aa) such Issuer is the surviving entity of such transactionentity; or (Bb) the Person (the “Successor Company”) formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership, trust or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided that EOTT Tronox Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement requirements for so long as the Company remains a limited liability company; company or a partnership;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to and the Trustee; Registration Rights Agreement;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger Successor Company (if other than such Issuer), except in or to which such sale, assignment, transfer, conveyance or other disposition has been made:
(A) would have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a transaction involving EOTT Finance, willIssuer immediately preceding the transaction; or
(B) would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant under Section 3.3; or
(C) would, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the most recently ended four fiscal quarters for which internal financial statements are available, have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio test set forth in of the first paragraph of Section 5.12 hereofCompany for such period calculated without giving pro forma effect to such transaction and any related financing transactions; and and
(v5) such Issuer has the Company shall have delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies (if any) comply with the applicable provision of this Indenture Indenture. In addition, such Issuer will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. For purposes of this covenant, the sale, lease, conveyance, assignment, transfer, or other disposition of all conditions precedent therein relating or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to such transaction has been satisfied.
(b) be the transfer of all or substantially all of the assets of the Company. The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the particular Issuer under this Indenture, but, in the case of a lease of all or substantially all its assets, the particular Issuer will not be released from the obligation to pay the principal of and interest on the Notes. Notwithstanding the foregoing paragraphforegoing, (x) any Restricted Subsidiary of the Company is permitted may consolidate with, merge into or transfer all or part of its properties and assets to the Company or any Guarantor, (y) any Issuer may merge with an Affiliate solely for the purpose of reincorporating such Issuer in another jurisdiction and (z) the Company may reorganize as any other form of entity a corporation in accordance with the procedures established in this Indenture; , provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization corporation is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or Columbia, (ii) the laws corporation assumes all of the jurisdiction Company’s obligations under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered delivers to the Trustee an Officers' Certificate and an Opinion of CounselCounsel confirming that the Holders of the outstanding Notes will not recognize income, each stating such consolidation gain or merger and, if loss for federal income tax purposes as a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way result of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofreorganization.
Appears in 1 contract
Sources: Indenture (Tronox Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person, unless: :
(i) either either: (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance Co may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; requirement;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations Obligations of such Issuer under the Notes Notes, the Indenture and this Indenture any applicable Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Co, such Issuer or the Company, the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such Issuer)sale, except in the case of such a transaction involving EOTT Financeassignment, transfer, lease, conveyance or other disposition shall have been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.in
Appears in 1 contract
Sources: Fourth Supplemental Indenture (PVR Partners, L. P.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Borrower may not ---------------------------------------- consolidate or merge with or into another Person (whether or not such Issuer Borrower is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer Borrower is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such IssuerBorrower) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such IssuerBorrower) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer Borrower under the Registration Rights Agreement, the Notes and this Indenture Agreement pursuant to supplemental indentures documentation in forms a form reasonably satisfactory to the TrusteeAdministrative Agent; (iii) immediately after such transaction no Default or Event of Default exists; and (iv) except in the case of a merger of Borrower with or into a Wholly Owned Subsidiary of Borrower, immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the entity surviving such consolidation or merger would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v9A(b) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to Fixed Charge Coverage Ratio for Borrower or the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger entity or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than Borrower), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made would, immediately after giving pro forma effect thereto as if such transaction had occurred at the beginning of the ap plicable four-quarter period, not be less than such Fixed Charge Coverage Ratio for Borrower and its Subsidiaries immediately prior to such transaction. In addition, Borrower may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this covenant will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among Borrower and its Subsidiaries. Notwithstanding the foregoing clause (iv), (i) any Subsidiary Guarantormay consolidate with, merge into or transfer all or part of its properties and assets to Borrower and (ii) shall be Borrower may merge with an entity organized Affiliate that has no significant assets or existing under liabilities and was formed solely for the laws purpose of changing the jurisdiction of organization of Borrower in another State of the United States, any state thereof States or the District form of Columbia or organization of Borrower so long as the laws amount of Indebtedness of Borrower and its Subsidiaries is not increased thereby and provided that the jurisdiction under which such Subsidiary Guarantor was organized and successor assumes all the obligations of such Subsidiary Guarantor pursuant to Borrower under the Subsidiary Guarantor's Subsidiary Guarantee of Registration Rights Agreement, the Notes and this Indenture Agreement pursuant to documentation in a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedAdministrative Agent.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Princess Beverly Coal Holding Co Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company shall not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Senior Notes and this Indenture pursuant to a supplemental indentures indenture in forms reasonably satisfactory a form substantially similar to the TrusteeEXHIBIT C hereto; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with or into a Wholly Owned Subsidiary of the Company, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such a transaction involving EOTT Financetransaction, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the have a Fixed Charge Coverage Ratio test set forth of at least 2 to 1 for the Company's most recently ended four full fiscal quarters for which internal financial statements are available; (v) each Subsidiary Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture in a form substantially similar to EXHIBIT C hereto confirmed that its Subsidiary Guarantee shall apply to the first paragraph of Section 5.12 hereofCompany's or the surviving Person's obligations under Indenture this Indenture and the Senior Notes; and (vvi) such Issuer has delivered the Senior Notes continue to be secured by a lien in substantially all of the Trustee an Officers' Certificate assets of the combined company (other than the equipment, fixtures and an Opinion real property of Counselthe Person merged with or into the Company), each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating junior only to such transaction has been satisfied.
(b) liens in respect of the Credit Facilities. Notwithstanding the foregoing paragraphforegoing, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor the Company is the surviving Personcorporation) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way and (ii) change the Company's or any Subsidiary's form of merger, consolidation organization from a corporation to a general or otherwise, limited partnership or a sale or other disposition of all limited liability company; provided, however, neither the Equity Interests of Company nor any Subsidiary Guarantor(other than a Foreign Subsidiary) is permitted to consolidate or merge with or into any direct or indirect Foreign Subsidiary; and provided further that, then in conjunction with any such transaction, the Company and the Subsidiary Guarantor (Guarantors shall take such actions as the Trustee may reasonably request in order to affirm the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all Subsidiary Guarantees and the security interests of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (Trustee in the event of a sale or other disposition of all the assets of such the Company and the Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofGuarantors.
Appears in 1 contract
Sources: Indenture (Goodman Conveyor Co)
Merger, Consolidation or Sale of Assets. The Borrower will not: (ax) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer the Borrower is the survivorsurviving corporation); or (y) directly or indirectly sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person (including, in the case of both clauses (x) and (y), pursuant to a Delaware LLC Division), unless:
(a) either: (i) either (A) such Issuer the Borrower is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower) or the Person to which such sale, assignment, lease, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer is a corporation, limited liability company or partnership organized or existing under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to laws of the Trustee; United States, any state of the United States or the District of Columbia;
(iiib) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such Issuer)sale, except in the case of such a transaction involving EOTT Financeassignment, willlease, on the date of such transaction after giving pro forma effect thereto transfer, conveyance or other disposition has been made expressly assumes, (x) by an assumption and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter periodjoinder agreement, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; executed and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraphAdministrative Agent, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) payment of the Company into a form principal of entity other than a limited liability company formed under Delaware law; (ii) and any premium and interest on the entity so formed by Obligations and the performance or resulting from such reorganization is an entity organized or existing under observance of every covenant of this Agreement on the law part of the United StatesBorrower to be performed or observed, any state thereof and (y) by amendment, supplement or the District of Columbia; other instrument (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms form reasonably satisfactory to the Collateral Trustee), executed and delivered to the Collateral Trustee, all obligations of the Borrower under the Security Documents, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Liens (to the extent such collateral agreements require such Liens to be perfected) created under the Security Documents on the Collateral owned by or transferred to the surviving entity; and
(ivc) immediately after such reorganization transaction, no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor . Upon any consolidation or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidationmerger, or any sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, taken as a whole, in a transaction that is subject to, and that complies with the provisions of, this Section 6.2, the successor Person formed by such consolidation or into or with which the Borrower is merged or to which such sale, transfer, assignment, lease, conveyance or other disposition is made, shall succeed to, and be substituted for, the Borrower (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition of assetsdisposition, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(ethis Agreement and the other Loan Documents referring to the Borrower shall refer instead to the successor Person and not to the Borrower), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws and may exercise every right and power of the United States, any state thereof or Borrower under this Agreement and the District of Columbia or other Loan Documents with the laws of same effect as if such successor Person had been named as the jurisdiction under which such Subsidiary Guarantor was organized Borrower herein and therein. When the successor Person assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or Borrower’s obligations under this Agreement and the Person acquiring other Loan Documents, the property (Borrower, except in the event case of a sale or other disposition of all the assets of such Subsidiary Guarantor) will lease, shall be released and relieved of any discharged from its obligations under its Subsidiary Guarantee; provided that this Agreement and the transaction complies with other Loan Documents, including the provisions obligation to pay the principal of Section 5.14 hereofor interest on the Loans.
Appears in 1 contract
Sources: Bridge Term Loan Credit Agreement (T-Mobile US, Inc.)
Merger, Consolidation or Sale of Assets. The Borrower will not: (ai) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer the Borrower is the survivorsurviving corporation); or (ii) directly or indirectly sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person unless: (including, in the case of both clauses (i) either and (Aii), pursuant to a Delaware LLC Division), unless:
(a) such Issuer either:
(i) the Borrower is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; or
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such Issuersale, assignment, lease, transfer, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, lease, transfer, lease, conveyance or other disposition shall have has been made assumes all expressly assumes, (x) by an assumption and joinder agreement, executed and delivered to the obligations Administrative Agent, the payment of such Issuer under the Notes principal of and any premium and interest on the Obligations and the performance or observance of every covenant of this Indenture pursuant Agreement on the part of the Borrower to supplemental indentures be performed or observed, and (y) by amendment, supplement or other instrument (in forms form reasonably satisfactory to the Trustee; Administrative Agent), executed and delivered to the Administrative Agent, all obligations of the Borrower under the Security Documents, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Liens (iiito the extent such collateral agreements require such Liens to be perfected) created under the Security Documents on the Collateral owned by or transferred to the surviving entity;
(c) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(ivd) immediately after giving pro forma effect to such transaction, such Issuer the Borrower or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, lease, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either (a) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Total Net Leverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v6.3(a) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger hereof or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding have a Total Net Leverage Ratio no greater than the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) Total Net Leverage Ratio of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) Borrower immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect prior to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Credit Agreement (T-Mobile US, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither The Issuer or Issuers holding all or substantially all of the assets of the Issuers shallon a combined basis will not, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuers on a combined basis in one or more related transactions, to another Person unless: unless (i) either (A) such Issuer is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for the Issuers agree that so long as the Company remains Senior Discount Notes are outstanding at least one of the Issuers shall be a limited liability companycorporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Senior Discount Notes and this the Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately before and after giving pro forma effect to such transaction, transaction no Default or Event of Default existsshall have occurred; and (iv) immediately after giving pro forma effect to except in the case of a merger of such transactionIssuer with or into a Restricted Subsidiary of such Issuer, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in or to which such sale, assignment, transfer, conveyance or other disposition shall have been made, together with the case of such a transaction involving EOTT Financesurviving Issuers, will, on the date of immediately before and after such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodquarter, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.9. None of the Issuers may, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Notwithstanding the foregoing, (a) any or all of the Issuers may merge or consolidate with or transfer substantially all of its assets to an Affiliate that has no significant assets or liabilities and (v) was formed solely for the purpose of changing the jurisdiction of organization of such Issuer has delivered to or the Trustee an Officers' Certificate form of organization of such Issuer, provided that the amount of Indebtedness of such Issuer and an Opinion its Restricted Subsidiaries is not increased thereby and provided, further, that the successor assumes all obligations of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Issuer under the Indenture and all conditions precedent therein relating to such transaction has been satisfied.
the Registration Rights Agreement and (b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established nothing in this Indenture; provided that (i) Section 5.1 shall be deemed to prevent the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) consummation of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedReorganization.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company may not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person Person, unless: :
(i) either (A) such Issuer the Company is the surviving entity of such transaction; entity, or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; exists or would exist;
(iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such Issuer)sale, except in assignment, transfer, lease, conveyance or other disposition shall have been made (A) will (treating any Indebtedness not previously an obligation of the case Company or any of such its Restricted Subsidiaries as a transaction involving EOTT Finance, will, on the date result of such transaction as having been Incurred at the time of such transaction) have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter periodfiscal quarter, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof4.9(a); and and
(v) such Issuer has the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, and such supplemental indenture complies (if any) comply with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedIndenture.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Louisiana Ship Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer may not (1) consolidate or merge with or into another Person (whether or not such the Issuer is the survivorsurviving Person); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, transactions to another Person Person; unless:
(1) either: (ia) either (A) such the Issuer is the surviving entity of such transactionPerson; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof or of the United States, the District of ColumbiaColumbia or any territory thereof (the Issuer or such Person, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; case may be, being herein called the “Successor Company”);
(ii2) the Person formed by or surviving any such consolidation or merger Successor Company (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Notes Notes, this Indenture, and this Indenture the Registration Rights Agreement pursuant to supplemental indentures agreements in forms form reasonably satisfactory to the Trustee; ;
(iii3) immediately after such transaction no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions transactions, as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either
(a) the Successor Company would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(b) the Fixed Charge Coverage Ratio test set forth for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction; and
(5) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; provided that, for the purposes of this Section 5.01 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole. For the avoidance of doubt, (1) the Issuer may therefore consummate a Music Publishing Sale in accordance with Section 4.13 without complying with this Section 5.01 notwithstanding anything to the contrary in this Section 5.01, (2) the Issuer may therefore consummate a Recorded Music Sale in accordance with Section 4.13 without complying with this Section 5.01 notwithstanding anything to the contrary in this Section 5.01 and (3) the determination in the first paragraph preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Issuer under any other contract to which the Issuer is a party. For the purpose of this Section 5.12 hereof; 5.01, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Issuer or any Restricted Subsidiary), the determination of whether such sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Issuer and its Restricted Subsidiaries. The foregoing clauses (3) and (v4) such shall not apply to the Merger. Notwithstanding the foregoing clauses (3) and (4), (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer has delivered or to another Restricted Subsidiary and (ii) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another state of the United States so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby. The foregoing sentence shall not apply to the Merger. In the event of any transaction described in and complying with the conditions listed in the preceding paragraph in which the Issuer is not the continuing corporation, the successor Person formed or remaining shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer and the Issuer will be discharged from all obligations and covenants under this Indenture and the Notes.
(b) The Issuer will deliver to the Trustee prior to the consummation of each proposed transaction an Officers' Officer’s Certificate certifying that the conditions set forth above are satisfied and an Opinion of Counsel, each stating which opinion may contain customary exceptions and qualifications, that such consolidation, merger or transfer andthe proposed transaction and the supplemental indenture, if a supplemental indenture is requiredany, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedIndenture.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Warner Music Group Corp.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallIssuer will, directly or indirectly, : (a) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving corporation); or (b) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its respective properties or assetsassets taken as a whole, in one or more related transactions, to another Person Person, unless:
(1) either: (i) either (Aa) such Issuer is the surviving entity of such transactionentity; or (Bb) the Person (the "Successor Company") formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership, trust or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided that EOTT Tronox Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement requirements for so long as the Company remains a limited liability company; company or a partnership;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to and the Trustee; Registration Rights Agreement;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger Successor Company (if other than such Issuer), except in or to which such sale, assignment, transfer, conveyance or other disposition has been made:
(A) would have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a transaction involving EOTT Finance, willIssuer immediately preceding the transaction; or
(B) would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant under Section 3.3; or
(C) would, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the most recently ended four fiscal quarters for which internal financial statements are available, have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio test set forth in of the first paragraph of Section 5.12 hereofCompany for such period calculated without giving pro forma effect to such transaction and any related financing transactions; and and
(v5) such Issuer has the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies (if any) comply with the applicable provision of this Indenture Indenture. In addition, such Issuer will not, directly or indirectly, lease all or substantially all of the properties and all conditions precedent therein relating assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for Person. For purposes of this clause (v) a reorganization shall not be considered materially adverse to covenant, the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counselsale, each stating that such reorganization andlease, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any saleconveyance, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the assets of any Subsidiary Guarantorthe Company. The Successor Company will succeed to, by way and be substituted for, and may exercise every right and power of, the particular Issuer under this Indenture, but, in the case of merger, consolidation or otherwise, or a sale or other disposition lease of all or substantially all its assets, the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) particular Issuer will not be released from the obligation to pay the principal of and relieved of any obligations under its Subsidiary Guarantee; provided that interest on the transaction complies with the provisions of Section 5.14 hereofNotes.
Appears in 1 contract
Sources: Indenture (Tronox Inc)
Merger, Consolidation or Sale of Assets. SECTION 5.01. WHEN LORAL SPACE MAY MERGE, CONSOLIDATE OR SELL ASSETS.
(a) Neither of the Issuers shallLoral Space shall not, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer Loral Space is the survivorsurviving corporation); or (y) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of Loral Space and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person Person, unless:
(1) either: (i) either (A) such Issuer Loral Space is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such IssuerLoral Space) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of Bermuda, the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such IssuerLoral Space) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer Loral Space under the Notes and this Indenture Guaranty pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Loral Space Default exists; and
(iv4) immediately after giving pro forma effect to such transaction, such Issuer Loral Space or the Person formed by or surviving any such consolidation or merger or to which such sale, assignment, transfer, conveyance or other disposition shall have been made (if other than such Issuer), except in Loral Space):
(A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a transaction involving EOTT Finance, Loral Space immediately preceding the transaction; and
(B) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodperiod or balance sheet date, as applicable, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to at least one of the Fixed Charge Coverage Ratio test tests set forth in the first proviso to paragraph (a) of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied4.05.
(b) Notwithstanding the foregoing paragraphIn addition, the Company is permitted Loral Space shall not, directly or indirectly, lease all or substantially all of its properties or assets in one or more related transactions, to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedPerson.
(c) The provisions When a successor corporation, trustee, paying agent or registrar assumes all of the obligations of its predecessor under the Notes, the Indenture and this Guaranty, the predecessor shall be released from those obligations.
(d) This Section 4.1 will 5.01 shall not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company Loral Space and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither Delta shall not merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) unless:
(1) immediately after giving effect thereto no Early Amortization Event, Default or Event of Default shall have occurred and be continuing;
(2) Delta is the surviving corporation or, if otherwise, (x) such other Person or continuing corporation (the “Successor Company”) shall (A) be an “air carrier” within the meaning of Section 40102(a)(2) of Title 49, and hold a certificate under Section 41102(a)(1) of Title 49; (B) be a United States Citizen; (C) be an air carrier and hold an air carrier operating certificate and other operating authorizations issued by the FAA pursuant to 14 C.F.R. Parts 119 and 121 as currently in effect or as may be amended or recodified from time to time; and (D) except as specifically permitted herein or in the Collateral Documents, possess all necessary certificates, exemptions, franchises, licenses, permits, designations, rights, concessions, authorizations, frequencies and consents which are material to the conduct of its business and operations as currently conducted, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; and
(3) in the case of a Successor Company, the Successor Company shall (A) execute, prior to or contemporaneously with the consummation of such transaction, such agreements, if any, as are in the reasonable opinion of the Issuers Trustee, necessary to evidence the assumption by the Successor Company of liability for all of the obligations of Delta hereunder and under the other Notes Documents and (B) cause to be delivered to the Trustee such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as the Trustee reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company. Upon any transaction in accordance with this Section 4.28(a) in any case in which Delta is not the surviving corporation, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, Delta under this Indenture with the same effect as if such Successor Company had been named as “Delta” herein. No such transaction shall have the effect of releasing Delta or any Successor Company which theretofore shall have become a successor to Delta in the manner prescribed in this Section 4.28(a) from its liability with respect to any Notes Document to which it is a party.
(b) Delta shall not liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution).
(c) No SPV Party shall, directly or indirectly, : (i) consolidate or merge with or into another Person, or permit any other Person to merge into or consolidate with it, or (whether or not such Issuer is the survivorii) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assetsproperties, in one or more related transactions, to another Person unless: (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedPerson.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Delta Air Lines, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Borrower shall not, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer the Borrower is the survivorsurviving 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 another Person unless: Person, unless (i) either (A) such Issuer the Borrower is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Borrower under this Agreement and the Notes and this Indenture pursuant to supplemental indentures other Loan Documents in forms a manner reasonably satisfactory to the Trustee; Administrative Agent, (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; , (iv) immediately after giving pro forma effect to such transactionexcept in the case of the amalgamation, such Issuer consolidation or merger of the Borrower with or into a Wholly Owned Restricted Subsidiary or with or into any Person solely for the purpose of effecting a change in the state of incorporation of the Borrower, the Borrower or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, willBorrower) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Consolidated Interest Expense Coverage Ratio test set forth in the first paragraph Section 5.7(a) (Incurrence of Section 5.12 hereof; Indebtedness and Issuance of Preferred Stock.), and (v) such Issuer has the Borrower shall have delivered to the Trustee Administrative Agent an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, conveyance or transfer and, if a supplemental indenture is required, such supplemental indenture other disposition complies with this Indenture and Agreement. In addition, the Borrower shall not, directly or indirectly, lease all conditions precedent therein relating or substantially all of its properties or assets, in one or more related transactions, to such transaction has been satisfiedany other Person. The provisions of this Section 5.16 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets by the Borrower to any of its Wholly Owned Restricted Subsidiaries. SECOND LIEN CREDIT AGREEMENT AMKOR TECHNOLOGY, INC.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as Upon any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by consolidation or merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assetsall or substantially all of the assets of the Borrower in accordance with Section 5.16(a) above, between the successor corporation formed by such consolidation or among into or with which the Company Borrower is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and any be substituted for (so that from and after the date of its Wholly-Owned Restricted Subsidiariessuch consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Agreement and the other Loan Documents referring to the "Borrower" shall refer instead to the successor corporation and not to the Borrower), and may exercise every right and power of the Borrower under this Agreement with the same effect as if such successor Person had been named as the Borrower herein; provided, however, that the predecessor Borrower shall not be relieved from the obligation to pay the principal of and interest on the Term Loan and the other Obligations except in the case of a sale of all of the Borrower's assets that meets the requirements of Section 5.16
(a) above.
(dc) No The Borrower shall not permit, except in connection with the sale or other disposition in accordance with this Agreement of all the assets or all the Capital Stock of any Subsidiary Guarantor shall to a Person that is not (either before or after giving effect to such transactions) a Subsidiary of the Borrower, any Subsidiary Guarantor to consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, Person unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such a Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof Guarantor or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and Borrower) unconditionally assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of Guaranty and the Notes other Loan Documents and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, transaction no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture shall have occurred which is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedcontinuing.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Amkor Technology Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, may consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, transactions to another corporation, Person unless: or entity unless (i) either (A) such Issuer is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and Registration Rights Agreement pursuant to supplemental indentures agreements in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after the transaction and after giving pro forma effect to such transactionthereto (except as otherwise specified in clause (b) below) as if the transaction had occurred at the beginning of the applicable four-quarter period, (a) such Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of ) or to which such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition shall have been made will be permitted to incur at least $1.00 of assetsadditional Indebtedness pursuant to, between in the case of the Co-Issuer or among its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio test or, in the case of the Company or its successor Person, the Company’s Debt to Adjusted Consolidated Cash Flow Ratio test, in each case, set forth in the first paragraph of Section 4.09 or (b) in the case of the Co-Issuer or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and, in the case of the Company or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and the Company’s Debt to Adjusted Consolidated Cash Flow Ratio, in each case, shall be less than or equal to, in the case of the Co-Issuer or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and, in the case of the Company or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and the Company’s Debt to Adjusted Consolidated Cash Flow Ratio, respectively, for the same period without giving pro forma effect to such transaction. Notwithstanding the foregoing, in no event shall (i) the Company and any of its WhollyCo-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall Issuer consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trusteeeach other, (ii) immediately after giving effect the Company 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 such transaction, no Default the Co-Issuer or Event of Default exists and (iii) the Company has delivered Co-Issuer sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedCompany.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Sba Communications Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person, unless: :
(i) either either: (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance Co may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; requirement;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Co, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, Company) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (B) have a Fixed Charge Coverage Ratio for such four-quarter period equal to or greater than the first paragraph of Fixed Charge Coverage Ratio immediately before such transaction; provided that this Section 5.12 hereof5.01(a)(iv) shall be terminated after the Company and its Restricted Subsidiaries are not subject to the Terminated Covenants; and and
(v) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer disposition and, if a supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations Obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (vSection 5.01(b)(v) a it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (xA) is subject to federal or state income taxation as an entity or (yB) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether except the Company or not affiliated with such another Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless unless: (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists exists, and (iiiii) the Company has Person formed by or surviving any such consolidation or merger assumes all the obligations of such Subsidiary Guarantor pursuant to a supplemental indenture substantially in the form of Annex A hereto, except that no such assumption or supplemental indenture shall be required in those circumstances described in Section 10.05 hereof. Subject to the foregoing exception, in case of any such consolidation or merger and upon the assumption by the successor Person by supplemental indenture, executed and delivered to the Trustee an Officers' Certificate substantially in the form of Annex A hereto, of the Guarantees contained herein and an Opinion the due and punctual performance of Counselall of the covenants of this Indenture to be performed by the Subsidiary Guarantor, each stating such successor shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor thereupon may cause to be signed any or all of the notations of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been issued at the date of the execution hereof.
(d) Notwithstanding anything in this Section 5.01 to the contrary, in the event the Company becomes a corporation or the Company or the Person formed by or surviving any consolidation or merger and(permitted in accordance with the terms of this Indenture) is a corporation, if a supplemental indenture is required, such supplemental indenture complies Finance Co may be dissolved in accordance with this Indenture and all conditions precedent therein relating may cease to such transaction have been satisfiedbe an Issuer.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Second Supplemental Indenture (Penn Virginia Resource Partners L P)
Merger, Consolidation or Sale of Assets. (a) Neither Delta shall not merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) unless:
(1) immediately after giving effect thereto no Early Amortization Event, Default or Event of Default shall have occurred and be continuing;
(2) Delta is the surviving corporation or, if otherwise, (x) such other Person or continuing corporation (the “Successor Company”) shall (A) be an “air carrier” within the meaning of Section 40102(a)(2) of Title 49, and hold a certificate under Section 41102(a)(1) of Title 49; (B) be a United States Citizen;(C) be an air carrier and hold an air carrier operating certificate and other operating authorizations issued by the FAA pursuant to 14 C.F.R. Parts 119 and 121 as currently in effect or as may be amended or recodified from time to time; and (D) except as specifically permitted herein or in the Collateral Documents, possess all necessary certificates, exemptions, franchises, licenses, permits, designations, rights, concessions, authorizations, frequencies and consents which are material to the conduct of its business and operations as currently conducted, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; and
(3) in the case of a Successor Company, the Successor Company shall (A) execute, prior to or contemporaneously with the consummation of such transaction, such agreements, if any, as are in the reasonable opinion of the Issuers Administrative Agent, necessary to evidence the assumption by the Successor Company of liability for all of the obligations of Delta hereunder and under the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company. Upon any consolidation or merger in accordance with this Section 6.10(a) in any case in which Delta is not the surviving corporation, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, Delta under this Agreement with the same effect as if such Successor Company had been named as “Delta” herein. No such consolidation or merger shall have the effect of releasing Delta or any Successor Company which theretofore shall have become a successor to Delta in the manner prescribed in this Section 6.10(a) from its liability with respect to any Loan Document to which it is a party.
(b) Delta shall not liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution).
(c) No SPV Party shall, directly or indirectly, : (i) consolidate or merge with or into another Person, or permit any other Person to merge into or consolidate with it, or (whether or not such Issuer is the survivorii) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assetsproperties, in one or more related transactions, to another Person unless: (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfiedPerson.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither the Parent Guarantor nor either of the Co-Issuers shallwill, directly or indirectly: (1) consolidate, consolidate amalgamate or merge with or into another Person (whether or not such Issuer is the survivorParent Guarantor or the Co-Issuers are the surviving corporation) or (2) sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its the properties or assetsassets of the Parent Guarantor and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person, unless:
(1) either: (ia) either (A) such Issuer the Parent Guarantor, or a Co-Issuer, as applicable, is the surviving entity of such transactionor continuing entity; or (Bb) the Person formed by or surviving or continuing following any such consolidation consolidation, arrangement, amalgamation or merger (if other than such the Parent Guarantor, or a Co-Issuer, as applicable) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity (x) organized or existing under the laws of the United States, any state thereof of the United States or the District of ColumbiaColumbia or (y) or incorporated or organized under the laws of Canada or any province or territory thereof (such Person, the “Surviving Entity”) and, in the case of SBP Finance (or any of its successors), if the Surviving Entity thereof is not a corporation, a co-obligor of the Notes is a corporation organized or existing under any such laws; provided that, in the case of clause (y) hereof, this Indenture shall be amended or supplemented, without the consent of any Holder of Notes pursuant to Section 9.01(a)(3), to provide for customary tax gross-up provisions with respect to payments made under this Indenture and the Notes and a provision to allow for a redemption of all (but not less than all) the Notes at a price equal to 100% of the aggregate principal amount thereof, plus, accrued and unpaid interest, if any, in the event a tax gross up is required; provided that EOTT Finance may the Trustee shall not consolidate be responsible or merge with liable for the form, terms or into any entity other than a corporation satisfying adequacy of such requirement for so long as the Company remains a limited liability company; provisions;
(ii2) the Person formed by or surviving any such consolidation or merger Surviving Entity (if other than such the Parent Guarantor, or a Co-Issuer, as applicable) or the Person to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have has been made assumes all the obligations of such Issuer the Parent Guarantor, or a Co-Issuer, as applicable, under the Notes and Notes, this Indenture and the Security Documents, pursuant to a supplemental indentures indenture or other documents or instruments in forms form reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect the Co-Issuers shall deliver, or cause to such transactionbe delivered, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, each stating to the effect that such consolidation, merger arrangement, amalgamation, merger, sale, conveyance, assignment, transfer, lease or transfer and, if a supplemental indenture is required, such supplemental indenture other disposition complies with the requirements of this Indenture;
(5) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Surviving Entity are assets of the type which would constitute Collateral under the Security Documents, the Surviving Entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Liens are perfected to the extent required by the Security Documents; and
(6) the Collateral owned by or transferred to the Surviving Entity shall: (a) continue to constitute Collateral under this Indenture and all conditions precedent therein relating the Security Documents, (b) be subject to such transaction has been satisfiedthe Lien in favor of the Collateral Agent for the benefit of the Notes Secured Parties, and (c) not be subject to any Liens other than Permitted Liens.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of This Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 5.01 will not apply to a merger or consolidation, or (i) any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets, assets between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Parent Guarantor, the Co-Issuers and/or any other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to any consolidation, amalgamation or other combination or merger of the Parent Guarantor, the Co-Issuers with or into an Affiliate for purpose of changing the legal domicile of such transactionParent Guarantor or the Co-Issuers, no Default reincorporating such or Event changing the legal form of Default exists such Parent Guarantor or the Co-Issuers in another jurisdiction so long as the amount of Indebtedness of the Parent Guarantor and its Restricted Subsidiaries is not increased thereby, (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counselany consolidation, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale amalgamation or other disposition combination, merger or transfer of all or part of the properties and assets of any Restricted Subsidiary to or with any of the Parent Guarantor, by way of mergerthe Co-Issuers or Guarantors, consolidation or otherwise(iv) any consolidation, or a sale amalgamation or other disposition combination, merger or transfer of all or part of the Equity Interests properties and assets of any Restricted Subsidiary Guarantorto or with any other Restricted Subsidiary and (v) the Transactions, then such Subsidiary Guarantor (in the event any Permitted Reorganization, any Permitted Change of a sale Control or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofIPO Reorganization Transaction.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person; unless: :
(i) either either: (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance Co may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; requirement;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Co, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, willCompany) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); provided,that this clause (iv) shall be suspended during any period in which the first paragraph of Section 5.12 hereofIssuers and their Restricted Subsidiaries are not subject to the Suspended Covenants; and and
(v) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer disposition and, if a supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; Back to Contents
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (xA) is subject to federal or state income taxation as an entity or (yB) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether except the Company or not affiliated with such another Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless unless: (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists exists, and (iiiii) the Company has Person formed by or surviving any such consolidation or merger assumes all the obligations of such Subsidiary Guarantor pursuant to a supplemental indenture substantially in the form of AnnexA hereto, except that no such assumption or supplemental indenture shall be required in those circumstances described in clauses (i) and (ii) of Section 10.05 hereof. In case of any such consolidation or merger and upon the assumption by the successor Person by supplemental indenture, executed and delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (substantially in the event form of a sale or other dispositionAnnex A hereto, by way of such a merger, consolidation or otherwise, the Guarantees contained herein and the due and punctual performance of all of the Equity Interests covenants of this Indenture to be performed by the Subsidiary Guarantor, such successor shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor thereupon may cause to be signed any or all of the notations of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary GuarantorGuarantees had been issued at the date of the execution hereof.
(d) Notwithstanding anything in this Section 5.01 to the contrary, in the event the Company becomes a corporation or the Company or the Person acquiring the property formed by or surviving any consolidation or merger (permitted in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies accordance with the provisions terms of Section 5.14 hereofthe Indenture) is a corporation, Finance Co. may be dissolved in accordance with the Indenture and may cease to be an Issuer.
Appears in 1 contract
Sources: Indenture (Atlas America Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Holding shall not consolidate or merge with or into another Person (whether or not such Issuer Holding is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) such Issuer Holding is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such IssuerHolding) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such IssuerHolding) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer Holding under the Notes Debentures and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transaction, such Issuer Holding or the entity or Person formed by or surviving any such consolidation or merger (if other than such IssuerHolding), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, lease, conveyance or other disposition shall have been made (a) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger 4.09 hereof or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) beginning of the Company into applicable four-quarter period) than the Fixed Charge Coverage Ratio of Holding and its subsidiaries immediately prior to the transaction. The foregoing clause (iv) will not prohibit (a) a form merger between Holding and a Wholly Owned Subsidiary of entity other than Acquisition Corp. created for the purpose of holding the Capital Stock of Holding, (b) a limited liability company formed under Delaware law; merger between Holding and a Wholly Owned Subsidiary or (iic) a merger between Holding and an Affiliate incorporated solely for the entity so formed by or resulting from such reorganization is an entity organized or existing under the law purpose of reincorporating Holding in another state of the United StatesStates so long as, any state thereof or in each case, the District amount of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations Indebtedness of the Company under the Notes Holding and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization its Restricted Subsidiaries is not materially adverse increased thereby. The Indenture will also provide that Holding may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) Person. The provisions of this Section 4.1 5.01 will not apply be applicable to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company Holding and any of its Wholly-Wholly Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Aki Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company shall not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with 44 or into a Wholly Owned Subsidiary of the Company, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made at the case of such a transaction involving EOTT Finance, will, on the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer has delivered each Guarantor, unless it is the other party to the Trustee transactions described above, shall have by supplemental indenture in a form substantially similar to EXHIBIT F hereto confirmed that its Notes Guarantee shall apply to the Company's or the surviving Person's obligations under this Indenture and the Notes; and the Company delivers an Officers' Certificate and an Opinion of CounselCounsel to the Trustee, each stating (A) that such consolidation, merger or transfer and, if a the proposed transaction and supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to that the Trustee an shall be entitled to conclusively rely upon such Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person; unless: :
(i) either either: (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance Co may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; requirement;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Co, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, willCompany) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); provided, that this clause (iv) shall be suspended during any period in which the first paragraph of Section 5.12 hereofIssuers and their Restricted Subsidiaries are not subject to the Suspended Covenants; and and
(v) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer disposition and, if a supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (xA) is subject to federal or state income taxation as an entity or (yB) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether except the Company or not affiliated with such another Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless unless: (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists exists, and (iiiii) the Company has Person formed by or surviving any such consolidation or merger assumes all the obligations of such Subsidiary Guarantor pursuant to a supplemental indenture substantially in the form of Annex A hereto, except that no such assumption or supplemental indenture shall be required in those circumstances described in clauses (i) and (ii) of Section 10.05 hereof. In case of any such consolidation or merger and upon the assumption by the successor Person by supplemental indenture, executed and delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (substantially in the event form of a sale or other dispositionAnnex A hereto, by way of such a merger, consolidation or otherwise, the Guarantees contained herein and the due and punctual performance of all of the Equity Interests covenants of this Indenture to be performed by the Subsidiary Guarantor, such successor shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor thereupon may cause to be signed any or all of the notations of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary GuarantorGuarantees had been issued at the date of the execution hereof.
(d) Notwithstanding anything in this Section 5.01 to the contrary, in the event the Company becomes a corporation or the Company or the Person acquiring the property formed by or surviving any consolidation or merger (permitted in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies accordance with the provisions terms of Section 5.14 hereofthe Indenture) is a corporation, Finance Co. may be dissolved in accordance with the Indenture and may cease to be an Issuer.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company shall not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person unless: or entity unless (i) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Company under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Company immediately preceding the transaction involving EOTT Finance, and (B) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Consolidated Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to any such transaction has been satisfied.
(b) Notwithstanding would not require the foregoing paragraphHolders of Notes generally to obtain a Gaming License or be qualified under the laws of any applicable gaming jurisdiction in the absence of such transactions, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) a transaction involving a jurisdiction that does not require the reorganization involves the conversion (by merger, sale, contribution licensing or exchange qualification of assets or otherwise) any of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes Notes, but reserves the discretionary right to require the licensing or qualification of any Holder of Notes, shall not be prohibited pursuant to the terms of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Alliance Gaming Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company may not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another corporation, Person or entity unless: :
(ia) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer is a corporation organized or existing under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to laws of the Trustee; (iii) immediately after giving pro forma effect to such transactionUnited Kingdom, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionthe Netherlands, such Issuer the Netherlands Antilles, Bermuda or the Cayman Islands or of the United States, any state thereof or the District of Columbia;
(b) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (vCompany) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from Person to which such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition will have been made assumes all the Obligations (including the due and punctual payment of assetsAdditional Amounts if the surviving corporation is a corporation organized or existing under the laws of the United Kingdom, between the Netherlands, the Netherlands Antilles, Bermuda or among the Company Cayman Islands) of the Company, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and any this Indenture;
(c) immediately after such transaction no Default or Event of its Wholly-Owned Restricted Subsidiaries.Default exists;
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the any entity or Person formed by or surviving any such consolidation or merger (merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made will have a ratio of Indebtedness to Annualized Pro Forma EBITDA equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding the transaction; provided, however, that if other the ratio of Indebtedness to Annualized Pro Forma EBITDA of the 41 Company immediately preceding such transaction is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company may be 0.5 greater than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) ratio immediately after giving effect to preceding such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger ; and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In such transaction would not result in the event of a sale or other disposition of all the assets loss of any Subsidiary Guarantor, by way of merger, consolidation material authorization or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all Material License of the Equity Interests of such Subsidiary Guarantor) Company or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofSubsidiaries.
Appears in 1 contract
Sources: Indenture (NTL Inc /De/)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Issuer may consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another corporation, Person or entity, unless: :
(i) either (A) such Issuer is the surviving entity of such transaction; or (B) the entity or the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(iv) immediately after giving pro forma effect except in the case of (a) a merger of such Issuer with or into a Wholly Owned Restricted Subsidiary of such Issuer or (b) a merger of the Company with and into a newly formed corporation that (1) prior to such transactionmerger, has no liabilities or (2) owns 100% of the Capital Stock of the Company and conducts no business other than holding such Capital Stock, in either case, for the purpose of reorganizing the Company as or into a corporation, such Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer)) or to which such sale, except in assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a Issuer immediately preceding the transaction involving EOTT Finance, and (B) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 4.09 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. The Borrower will not: (ai) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer the Borrower is the survivorsurviving corporation); or (ii) directly or indirectly sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person, unless: :
(a) either:
(i) either (A) such Issuer the Borrower is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; or
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such Issuersale, assignment, lease, transfer, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, lease, transfer, lease, conveyance or other disposition shall have has been made assumes all expressly assumes, (x) by an assumption and joinder agreement, executed and delivered to the obligations Administrative Agent, the payment of such Issuer under the Notes principal of and any premium and interest on the Term Loans and the performance or observance of every covenant of this Indenture pursuant Agreement on the part of the Borrower to supplemental indentures be performed or observed, and (y) by amendment, supplement or other instrument (in forms form reasonably satisfactory to the Trustee; Administrative Agent), executed and delivered to the Administrative Agent, all obligations of the Borrower under the Security Documents, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Liens (iiito the extent such collateral agreements require such Liens to be perfected) created under the Security Documents on the Collateral owned by or transferred to the surviving entity;
(c) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(ivd) immediately after giving pro forma effect to such transaction, such Issuer the Borrower or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, lease, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either (a) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in Section 6.3(a) hereof or (b) have a Debt to Cash Flow Ratio no greater than the first paragraph Debt to Cash Flow Ratio of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating Borrower immediately prior to such transaction has been satisfied.transaction. This Section 6.8 will not apply to (and the following shall be permitted notwithstanding this Section 6.8):
(a) a merger of the Borrower with a direct or indirect Subsidiary of Parent solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby; or
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by consolidation or merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Upon any consolidation or merger, or any sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, taken as a whole, in a transaction that is subject to, and that complies with the provisions of, Section 6.8 hereof, the successor Person formed by such consolidation or into or with which the Borrower is merged or to which such sale, transfer, assignment, lease, conveyance or other disposition is made, shall succeed to, and be substituted for the Borrower (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition of assetsdisposition, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(ethis Agreement referring to the “Borrower” shall refer instead to the successor Person and not to the Borrower), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws and may exercise every right and power of the United States, any state thereof or Borrower under this Agreement with the District of Columbia or same effect as if such successor Person had been named as the laws of Borrower herein. When the jurisdiction under which such Subsidiary Guarantor was organized and successor Person assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any Borrower’s obligations under its Subsidiary Guarantee; provided that this Agreement, the transaction complies with the provisions of Section 5.14 hereofBorrower shall be discharged from those obligations.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. Unless otherwise specified in respect of a series of Securities, neither the Company nor any Guarantor will (ai) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person or (whether or not such Issuer is the survivorii) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its or its subsidiaries’ properties or assetsassets taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i) either (A) The Company or such Issuer is Guarantor, as the case may be, shall be the surviving entity of such transactionPerson; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company or such IssuerGuarantor, as the case may be) or the Person to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have has been made assumes all the obligations of such Issuer is a corporation, partnership or limited liability company organized or existing under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to laws of the Trustee; United States, any state of the United States or the District of Columbia;
(iiib) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Company or such Issuer)Guarantor, except as the case may be) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all of the Company’s obligations or the obligations of such Guarantor, as the case may be, under the Securities and this Indenture pursuant to a supplemental indenture or other agreements delivered to the Trustee;
(c) immediately after such transaction, no Default or Event of Default exists (other than in the case of: (i) the Company’s merger, or the merger of such a transaction involving EOTT FinanceGuarantor, willas the case may be, on with an affiliate solely for the date purpose of reincorporating in another jurisdiction; (ii) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company, the Guarantors or any Subsidiary); and
(d) the Company or such transaction after giving pro forma effect thereto and any related financing transactions Guarantor, as if such transaction had occurred at the beginning of the applicable four-quarter periodcase may be, shall have delivered, or cause to be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered delivered, to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution transfer, conveyance, lease or exchange other disposition complies with the requirements of assets or otherwise) this Indenture, and an Opinion of Counsel stating that the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) Securities, the entity so formed by or resulting from such reorganization is an entity organized or existing under Indenture and the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the Guarantees constitute valid and binding obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because or, if applicable, the successor or survivor of company) and such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within Guarantors. Notwithstanding the meaning of foregoing, the limitations set forth in this Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will 5.01 shall not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of Guarantor if at such time such Guarantor has been released from its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Guarantee pursuant to Section 5.14 hereof10.09.
Appears in 1 contract
Sources: Senior Notes Indenture (Trinity Parts & Components, LLC)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Parent nor any Guarantor will consolidate or merge with or into another Person (whether or not the Parent or such Issuer Guarantor, as the case may be, is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, transactions to another Person unless: unless (i) either (A) the Parent or such Issuer Guarantor, as the case may be, is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Parent or such IssuerGuarantor) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Parent or a Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Parent or such Issuer Subsidiary Guarantor, as the case may be, under the Subordinated Term Loan D Notes or such Guarantor's Guaranty thereof and this Indenture Agreement pursuant to supplemental indentures an agreement in forms a form reasonably satisfactory to the TrusteeHolders; (iii) immediately after giving pro forma effect to such transaction, no Subordinated Term Loan D Default or Subordinated Term Loan D Event of Default exists; and (iv) immediately after giving pro forma effect to except in the case of a merger of the Parent or such transactionGuarantor with or into another Guarantor or a Wholly Owned Restricted Subsidiary of the Parent, or a merger of a Guarantor with or into another Person in connection with a Permitted Investment in such Issuer Person, the Parent or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Parent), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Parent immediately preceding the transaction involving EOTT Finance, and (B) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes 1.7 of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedAnnex.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer is the survivor) 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 another Person unless: (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to Without waiving the provisions of Section 4.1(e4.1(a), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) it shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant a condition precedent to the Subsidiary Guarantor's Subsidiary Guarantee merger of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory Tenant with another entity, to the Trusteeconsolidation of Tenant with one or more other entities, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of substantially all the assets of Tenant to one or more other entities (a "MERGER AND SALE EVENT") that (i) the surviving entity or transferee of assets, as the case may be, shall deliver to Landlord and Lender an acknowledged instrument in recordable form assuming all obligations, covenants and responsibilities of Tenant hereunder and under any instrument executed by Tenant relating to the Premises or this Lease, including, without limitation, any consent to the assignment of Landlord's interest in this Lease to the Lender as security for indebtedness, (ii) no Event of Default then exists under this Lease, (iii) confirmation by the Guarantor of its guaranty, if any, (iv) confirmation from the Rating Agencies involved in any secondary market transaction relating to the Indenture, that any such Subsidiary Guarantortransaction (and the Credit Enhancement Facility relating to such transaction, if any) will be released and relieved not result in a qualification, withdrawal or downgrade of either the credit rating of Tenant or of the then current ratings for any securities issued in connection with a secondary market transaction by any such Rating Agencies, (v) the surviving entity of any merger or consolidation or the transferee of such assets allowed above must be organized in the United States and must have a net worth and credit standing equal to or greater than the net worth and credit standing of Tenant on the day prior to such Merger and Sale Event unless Tenant shall have provided a Credit Enhancement Facility satisfactory to Landlord and Lender in their sole discretion with respect to such Merger and Sale Event, (vi) Tenant shall have delivered such estoppels, certificates and/or opinions of counsel as may be required by Landlord, Lender or such Rating Agencies in connection with such transaction, including but not limited to a REMIC Opinion, (vii) the surviving entity shall specifically assume all obligations of Tenant under its Subsidiary Guarantee; provided this Lease and under any other agreement of Tenant related hereto or thereto, (viii) the surviving entity must be a solvent entity, and (ix) the surviving entity must either be an entity formed in the United States or must specifically consent to jurisdiction in all applicable states of the United States, and must provide an opinion in form reasonably acceptable to Landlord and to Lender and acceptable to the Rating Agencies that such consent to jurisdiction is enforceable and valid and (x) Lender and Landlord shall be given, as a prerequisite to such merger or consolidation or disposition, a written certification from the transaction complies with chief financial officer of Tenant that the provisions of this Section 5.14 hereofhave been satisfied (collectively, the "MERGER AND SALE CONDITIONS"). Tenant covenants that it will not engage in a Merger and Sale Event unless the Merger and Sale Conditions have been satisfied. Except as required by law or court order or in connection with any enforcement by Landlord of its rights and remedies under this Lease, for a period which is the earlier of (x) twelve months following receipt thereof by Landlord, or (y) until such information shall be disclosed to the public (other than by reason of a disclosure thereof by Landlord in violation of this Lease), Landlord shall not disclose the content of any information provided by Tenant to Landlord in connection with any Merger and Sale Event to any party other than (i) Landlord's beneficiaries (or the beneficial owners of any beneficiaries of Landlord) or their respective accountants, consultants or counsel, and (ii) Lender and the Rating Agencies or their respective accountants, consultants or counsel. Tenant shall be responsible for all costs and expenses of Landlord, Lender and/or the Rating Agencies (including reasonable attorneys' fees and expenses) in connection with the transactions contemplated by this Section.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer shall not consolidate, directly or indirectlyamalgamate, consolidate participate in an arrangement with or merge with or into another Person (whether or not such the Issuer is the survivor) surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another Person unless: :
(ia) either (A) such the Issuer is the surviving entity of such transaction; Person or (B) the Person formed by or surviving any such consolidation consolidation, amalgamation, arrangement or merger (if other than such Issuerthe Issuer ) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation, limited partnership or limited liability company organized or existing under the laws of the United States; provided, any state thereof or however, that if the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains surviving Person is a limited liability company; company or limited partnership, such entity shall also form a co-issuer that is a corporation;
(iib) the Person formed by or surviving any such consolidation consolidation, amalgamation, arrangement or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the Issuer’s obligations of such Issuer under the Notes Notes, this Indenture, the Collateral Documents and this Indenture the First Lien Intercreditor Agreement (and, if applicable, any Junior Lien Intercreditor Agreement) pursuant to a supplemental indentures in forms reasonably satisfactory indenture and joinders or supplements, as applicable, to the Trustee; Collateral Documents and the First Lien Intercreditor Agreement (iiiand, if applicable, any Junior Lien Intercreditor Agreement), in each case, in form reasonably acceptable to the Trustee and Collateral Agent;
(c) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(ivd) immediately after giving pro forma effect to such transaction, such the Issuer or the Person formed by or surviving any such consolidation consolidation, amalgamation, arrangement or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made (i) will have a Consolidated Fixed Charge Coverage Ratio immediately after the transaction (but prior to any purchase accounting adjustments or accrual of deferred tax liabilities resulting from the transaction) not less than the Issuer)’s Consolidated Fixed Charge Coverage Ratio immediately preceding the transaction or (ii) would, except in at the case of such a transaction involving EOTT Finance, will, on the date time of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a). Notwithstanding the Fixed Charge Coverage Ratio test set forth foregoing, but subject to Sections 10.03 and 10.04, any Restricted Subsidiary may consolidate, amalgamate with, participate in the first paragraph an arrangement with or merge into or transfer all or part of Section 5.12 hereof; its properties and (v) such Issuer has delivered assets to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger Issuer or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) another Restricted Subsidiary. Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
clauses (c) The provisions of Section 4.1 will and (d), this Article 5 shall not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition amalgamation of assets, between or among the Company and any Issuer with a Restricted Subsidiary solely for the purpose of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is reorganizing the surviving Person) Issuer in another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws jurisdiction of the United States, States or any state State thereof or the District of Columbia or so long as the laws amount of Indebtedness of the jurisdiction under which such Issuer and the Restricted Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiednot increased thereby.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallIssuer may, directly or indirectly, : (A) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving corporation) or (B) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person Person; unless: :
(i) either either: (Aa) such Issuer is the surviving entity of such transaction; corporation or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made Columbia and assumes all of the obligations of such Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; provided, that at all times at least one Issuer shall be a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(iiiii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and
(iviii) immediately after giving pro forma effect to such transaction, (a) such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (a) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger 4.9 hereof or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) have a Fixed Charge Coverage Ratio equal to or greater than the Fixed Charge Coverage Ratio of such Issuer immediately prior to such transaction. In no event shall the Company or MSG enter into any transaction that results in, or otherwise permit, MSG to cease being a Restricted Subsidiary of the Company. For purposes of this Section 5.1, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more Restricted Subsidiaries of any Issuer, which properties and assets, if held by such Issuer instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties and assets of such Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Issuer. Notwithstanding the foregoing paragraphpreceding clause (iii), (x) any Restricted Subsidiary may consolidate with, merge into, sell, assign, convey, lease or otherwise transfer all or part of its properties and assets to any Issuer or to any Guarantor and (y) an Issuer may merge with an Affiliate incorporated solely for the Company purpose of reincorporating such Issuer in another jurisdiction so long as such jurisdiction is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof of the United States or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Mobile Storage Group Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallParent nor the Issuer will, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not such the Parent or the Issuer is the survivorsurviving Person); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Parent or the Parent and its Subsidiaries taken as a whole or the Issuer or the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) such the Parent or the Issuer is the surviving entity of such transactionPerson; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such the Parent or the Issuer, as the case may be) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, ; provided that EOTT Finance may not consolidate if the Person is a partnership or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; , then a corporation wholly owned by such Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia that does not and will not have any material assets or operations shall become a co-issuer of the Notes pursuant to a supplemental Indenture duly executed by the Trustee;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such the Parent or the Issuer, as the case may be) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer the Parent or the Issuer, as the case may be, under the Notes and this the Indenture pursuant to a supplemental indentures in forms reasonably satisfactory to the Trustee; indenture;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transactionthe Parent or the Issuer, such Issuer as the case may be, or the Person formed by or surviving any such consolidation or merger (if other than such the Parent or the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodTest Period, (i) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (ii) have had a Fixed Charge Coverage Ratio equal to or greater than the first paragraph of Section 5.12 hereofactual Fixed Charge Coverage Ratio for the applicable Test Period; and and
(v5) such Issuer has delivered the Parent delivers to the Trustee an Officers' Officer’s Certificate and an Opinion opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies counsel as to compliance with this Indenture Section 5.01. In addition, neither the Parent nor the Issuer may, directly or indirectly, lease all or substantially all of its and all conditions precedent therein relating its respective Subsidiaries properties or assets, in one or more related transactions, to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Person. This Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 5.01 will not apply to (1) a merger of the Parent or consolidationthe Issuer, as the case may be, with an Affiliate solely for the purpose of reforming the Parent or the Issuer, as the case may be, in another jurisdiction or forming a direct or indirect holding company of the Issuer that is a Wholly Owned Subsidiary of the Parent; and (2) any sale, transfer, assignment, transferconveyance, lease, conveyance lease or other disposition of assets, assets between or among the Company Parent, the Issuer and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United StatesIssuer, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, including by way of merger, consolidation merger or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofconsolidation.
Appears in 1 contract
Sources: Indenture (Terraform Global, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person; unless: :
(i) either either: (A) such Issuer is the surviving entity of such transactionentity; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, Columbia (provided that EOTT GulfTerra Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company Partnership remains a limited liability company; partnership);
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in ):
(A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a transaction involving EOTT Finance, willIssuer immediately preceding the transaction; and
(B) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); provided, however, that this clause (B) shall be deemed deleted and no effect after the first paragraph of Section 5.12 hereofdate on which the Partnership and the Restricted Subsidiaries are no longer subject to the Eliminated Covenants; and and
(vC) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company Partnership is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company Partnership into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations of the Company Partnership under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x1) is subject to federal or state income taxation as an entity or (y2) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
Section 5.01 (ca) The provisions of Section 4.1 will shall not apply to a merger or consolidation, consolidation or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company Partnership and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than but excluding the Company Partnership or a Wholly-Owned Restricted Subsidiaryanother Subsidiary Guarantor, unless (i) subject to the provisions of Section 4.1(e5.01(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this the Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, and (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation exists. Any Subsidiary Guarantor may be merged or merger and, if a supplemental indenture is required, such supplemental indenture complies consolidated with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedor into any one or more Subsidiary Guarantors.
(e) In the event of a sale or other disposition of all or substantially all of the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all or substantially all of the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies Partnership applies the Net Proceeds of such sale or other disposition in accordance with the provisions of Section 5.14 hereofset forth under Sections 3.09 and 4.07.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither OI Group shall not, in any transaction or series of the Issuers shalltransactions, merge or consolidate with or into or, directly or indirectly, consolidate or merge with or into another Person (whether or not such Issuer is the survivor) or sell, assign, transfer, lease, convey or otherwise dispose of Transfer all or substantially all of its properties and assets to, any Person or assetsPersons, and OI Group shall not permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions, in one the aggregate, would result in a Transfer of all or more related transactionssubstantially all of the properties and assets of OI Group and its Restricted Subsidiaries, on a consolidated basis, to another any other Person unlessor Persons, unless at the time and after giving effect thereto:
(1) either: (ia) either (A) OI Group or such Issuer Restricted Subsidiary, as the case may be, is the surviving entity of such transactioncorporation; or (Bb) the Person formed by or surviving any such consolidation or merger (if other than OI Group or such IssuerRestricted Subsidiary) (the “Successor Company”) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition Transfer shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity ;
(2) the Successor Company (if other than a corporation satisfying OI Group or such requirement for so long Restricted Subsidiary) or the Person to which such Transfer shall have been made assumes by supplemental indenture executed by the Successor Company or Person, as the case may be, and delivered to the Trustee, all the obligations of OI Group or such Restricted Subsidiary (if such Restricted Subsidiary is a Guarantor), as the case may be, under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of Default exists; and
(4) OI Group or the Successor Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) OI Group), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition Transfer shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant made, delivers or causes to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, Counsel each stating that such consolidation, merger transaction or transfer and, if a series of transactions and the supplemental indenture is required, such supplemental indenture complies in respect thereto comply with this the Indenture and that all conditions precedent therein provided for in the Indenture relating to such transaction has and the supplemental indenture have been satisfied.
complied with. This Section 5.01 shall not apply to (bi) Notwithstanding the foregoing paragrapha merger or consolidation of OI Group, the Company is permitted to reorganize as or any of the Guarantors with or into any other form of entity in accordance with the procedures established in this Indenture; provided that (i) Company, OI Group or any of the reorganization involves Guarantors or the conversion (by merger, sale, contribution or exchange Transfer of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company Company, OI Group and any of the Guarantors and (ii) a merger or consolidation of any Foreign Subsidiary with or into OI Group or any of its Wholly-Owned Restricted Subsidiaries or the Transfer of assets from any Foreign Subsidiary to OI Group or any of its Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Owens-Illinois Group Inc)
Merger, Consolidation or Sale of Assets. (a) Neither None of the Issuers shallCompany, directly NE LP, NE LLC, NEA or indirectly, NJEA shall consolidate or merge with or into another Person (whether or not such Issuer entity is the survivorsurviving entity) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets or all or any of the partner interests of NEA or NJEA in one on or more related transactionstransactions to any Person unless (a) such consolidation, to another Person unless: merger, sale, assignment, lease, conveyance or other disposition (i) either does not constitute a change of control or (Aii) such Issuer constitutes a Change of Control and a Change of Control Offer is made pursuant to Section 4.15 hereof, (b)(i) the Company, NE LP or NE LLC (as the case may be) is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) the Company, NE LP or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long NE LLC as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuercase may be) or the Person entity to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x1) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company corporation or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity partnership organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws and (2) assumes all of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee Obligations of the Notes Company, NE LP or NE LLC (as the case may be) under the Note, the Bonds, the Indenture, the Bond Guaranty, the Company and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to Partner Pledge Agreement and the TrusteeRegistration Rights Agreement, (iic) immediately after giving effect to such transaction, no Default or Event of Default exists exists, (d) ▇▇▇▇▇'▇ and S&P confirm that the then current ratings of the Bonds will not be lowered as a result thereof and (iiie) the Company has delivered Company, NE LP and NE LLC would be permitted under Section 4.09 to incur one dollar of Indebtedness the proceeds of which would be used to finance capital expenditures other than Required improvements for NEA and/or NJEA. The Company, NE LP and NE LLC, as the case may be, shall deliver to the Trustee an Officers' Officer's Certificate (attaching the arithmetic computations to demonstrate compliance with clause (e) above) and an Opinion of Counsel, each stating that such consolidation consolidation, merger or merger and, if a supplemental indenture is required, transfer and such supplemental indenture complies with this Indenture Article and that all conditions precedent therein herein provided for relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.complied with;
Appears in 1 contract
Sources: Indenture (Northeast Energy Lp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer may not consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (ia) either (A) such the Issuer is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (iib) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such the Issuer under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; , (iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; exists and (ivd) immediately after giving pro forma effect to such transaction, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition shall have been made (i) will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Issuer and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating its Restricted Subsidiaries immediately prior to such transaction has been satisfied.
transaction. The foregoing clause (d) will not prohibit (a) a merger between the Issuer and a Wholly Owned Subsidiary of Holdings created for the purpose of holding the Capital Stock of the Issuer, (b) Notwithstanding a merger between the foregoing paragraph, Issuer and a Wholly Owned Restricted Subsidiary or (c) a merger between the Company is permitted to reorganize as any other form Issuer and an Affiliate incorporated solely for the purpose of entity reincorporating the Issuer in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law another State of the United StatesStates so long as, any state thereof or in each case, the District amount of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations Indebtedness of the Company under the Notes Issuer and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization its Restricted Subsidiaries is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization increased thereby. The Issuer shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor lease all or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and substantially all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiariesassets to any Person.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Decrane Holdings Co)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivorsurviving entity); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of Sunoco LP and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) such Issuer is the surviving entity of such transactionentity; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided however, that EOTT Finance Corp. may not consolidate or merge with or into any entity Person other than a corporation satisfying such requirement for so long as the Company remains Sunoco LP is not a limited liability company; corporation;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and any Registration Rights Agreement then in effect pursuant to a supplemental indentures in forms reasonably satisfactory to the Trustee; indenture hereto or other appropriate agreement;
(iii3) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; ;
(iv4) immediately after giving pro forma effect to such transactionin the case of a transaction involving Sunoco LP and not Finance Corp., such Issuer Sunoco LP or the Person formed by or surviving any such consolidation or merger (if other than such IssuerSunoco LP), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, lease, conveyance or other disposition has been made, will either:
(A) be, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) have a Fixed Charge Coverage Ratio, on the first paragraph date of Section 5.12 hereofsuch transaction and after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, not less than the Fixed Charge Coverage Ratio of Sunoco LP immediately prior to such transaction; and and
(v5) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies or other appropriate agreement (if any) comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied; provided that clauses (3) and (4) shall not apply to any sale of assets of a Restricted Subsidiary to Sunoco LP or another Restricted Subsidiary or the merger or consolidation of a Restricted Subsidiary into any Restricted Subsidiary or Sunoco LP.
(b) Notwithstanding anything to the foregoing paragraphcontrary in this Indenture or the Notes, the Company 7-Eleven Transaction or any Qualified Retail Asset Sale shall not constitute a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of Sunoco LP and its Subsidiaries, taken as a whole.
(c) Notwithstanding Section 5.01(a), Sunoco LP is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i1) the reorganization involves the conversion (by merger, sale, legal conversion, contribution or exchange of assets or otherwise) of the Company Sunoco LP into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia Columbia;
(3) the entity so formed by or the laws of the jurisdiction under which resulting from such Subsidiary Guarantor was organized and reorganization assumes all the obligations of such Subsidiary Guarantor pursuant to Sunoco LP under the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and Notes, this Indenture and any Registration Rights Agreement then in effect pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, hereto or other appropriate agreement;
(ii4) immediately after giving effect to such transaction, reorganization no Default or Event of Default exists and exists;
(iii5) such reorganization is not materially adverse to the Company Holders of Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered materially adverse to the Holders of Notes solely because the successor or survivor of such reorganization (A) is subject to federal or state income taxation as an entity or (B) is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Internal Revenue Code of 1986, as amended, or any similar state or local law); and
(6) Sunoco LP has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation or merger and, if a supplemental indenture is required, reorganization and such supplemental indenture complies or other appropriate agreement (if any) comply with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(ed) In the event of a sale A Guarantor may not sell or other disposition otherwise dispose of all or substantially all of its properties or assets to, or consolidate with or merge with or into (whether or not such Guarantor is the assets of any Subsidiary surviving Person), another Person, other than Sunoco LP or another Guarantor, except as permitted by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released Sections 10.04 and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 10.05 hereof.
Appears in 1 contract
Sources: Indenture (Sunoco LP)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer shall not, directly or indirectly, consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) or surviving corporation), and the Issuer will not sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person (including by way of consolidation or merger), unless:
(1) either: (i) either (A) such the Issuer is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided that, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying in the case such requirement for so long as the Company remains Person is a limited liability company; company or a partnership, a co-obligor of the Notes is a corporation;
(ii2) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer the Issuer, as the case may be, under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii3) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, no Default or Event of Default exists; and
(iv4) immediately after giving pro forma effect to such transaction, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in the case of or to which such a transaction involving EOTT Financesale, willassignment, transfer, conveyance or other disposition shall have been made, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, period either (A) would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a), or (B) would have a Fixed Charge Coverage Ratio on such basis higher than the first paragraph Fixed Charge Coverage Ratio immediately prior to such transactions.
(b) Notwithstanding clauses (3) and (4) of Section 5.12 hereof; 5.01(a), the Issuer may merge or consolidate with a Restricted Subsidiary incorporated solely for the purposes of organizing the Issuer in another jurisdiction.
(c) The Issuer shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person.
(d) This Section 5.01 will not apply to (i) a sale, assignment, transfer, conveyance or other disposition of assets (including by way of consolidation or merger) between or among the Issuer and any of its Restricted Subsidiaries or (vii) the Transactions.
(e) In connection with any such consolidation, merger, sale, assignment, transfer, conveyance or other disposition, the Issuer has delivered shall deliver, or cause to be delivered, to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, leaseconveyance or other disposition and the supplemental indenture in respect thereto comply with this Indenture and that all conditions precedent therein provided for relating to such transactions have been complied with.
(f) Upon any such consolidation, merger, sale, assignment, transfer, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e)disposition, the successor Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under into which the laws of the United States, any state thereof Issuer is merged or the District of Columbia or the laws of the jurisdiction under successor Person to which such Subsidiary Guarantor was organized transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer in this Indenture, and when a successor Person assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and its predecessor under this Indenture pursuant to or the Notes, the predecessor shall be released from those obligations; provided, however, that in the case of a supplemental indenture in form reasonably satisfactory to transfer by lease, the Trusteepredecessor shall not be released from the payment of principal of, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger andpremium, if a supplemental indenture is requiredany, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedinterest on the Notes.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Nortek Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer shall not consolidate or merge with or into another Person (whether or not such the Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: Person
(i) either (A) such the Issuer is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or and existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer) ), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made, assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, such the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the case of such a transaction involving EOTT Finance, will, on the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; 4.09 hereof and (vB) have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer has delivered and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, Counsel each stating of which shall state that such consolidation, merger or transfer and, if a supplemental indenture is required, and such supplemental indenture complies comply with this Indenture Article 5 and that all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; herein provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfiedcomplied with.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Company shall not consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another corporation, Person unless: or entity unless (i) either (A) such Issuer the Company is the surviving corporation or the entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or to which such sale, assignment, transfer, lease, -43- conveyance or other -49- 57 disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of such Issuer the Company under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the TrusteeTrustee and such entity or Person shall have taken all steps necessary or reasonably requested by the Trustee to protect and perfect the Security Interests granted or purported to be granted under the Security Documents; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, such Issuer the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) shall have Consolidated Net Worth immediately after the case transaction equal to or greater than the Consolidated Net Worth of such a the Company immediately prior to the transaction involving EOTT Financeand (B) shall, will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer has the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, Counsel each stating that (A) such consolidation, merger or transfer and, if a transaction and supplemental indenture is required, such supplemental indenture complies comply with this Indenture Article, and (B) all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; herein provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
complied with; and (cvi) the Company shall have delivered to the Trustee all instruments of further assurance and all actions, as are necessary to maintain, preserve and protect the rights of the Holders of the Notes and the Trustee hereunder and under each of the applicable Security Documents with respect to the Security Interests have been taken. The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than by the Company or its Restricted Subsidiaries of all or substantially all of their respective property or assets to one or more of their Subsidiaries shall not relieve either the Company or the Restricted Subsidiaries from their respective obligations hereunder, under the Notes or under the Security Documents. Subject to the foregoing, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or any other Restricted Subsidiary or other entity that becomes, by reason of such consolidation, merger or transfer, a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Metal Management Inc)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, The Issuer will not: (1) consolidate or merge with or into another Person Person, or (whether or not such Issuer is the survivor2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person Person, unless: :
(i) either either:
(A) such the Issuer is the surviving entity of such transactionPerson; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(ii) the "SUCCESSOR COMPANY"Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture hereto in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default or Event of Default exists; and
(iv) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; or (B) have had a Fixed Charge Coverage Ratio not less than the Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; provided that clauses (iii) and (iv) shall not apply to (1) the merger or consolidation of the Issuer with or into one of its Restricted Subsidiaries for any purpose or (2) with or into an Affiliate solely for the purpose of reorganizing the Issuer in another jurisdiction.
(b) Notwithstanding Section 5.01(a) hereof, the Issuer may reorganize as any other form of entity in accordance with the procedures established in this Indenture, provided that:
(i) the reorganization involves the conversion (by merger, sale, legal conversion, contribution or exchange of assets or otherwise) of the Issuer into a form of entity other than a limited partnership formed under Delaware law;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.;
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to accordance with the Trustee; procedures established herein;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders holders or Beneficial Owners of the Notes (for purposes of this clause (v5) a reorganization shall will not be considered materially adverse to the Holders holders or Beneficial Owners of the Notes (A) solely because the successor or survivor of such reorganization (xA) is subject to federal or state income taxation as an entity or (yB) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i1504(b) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions A Guarantor may not sell or otherwise dispose of Section 4.1 will not apply to a merger all or consolidationsubstantially all of its properties or assets to, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) ), another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company Issuer or a Wholly-Owned Restricted Subsidiaryanother Guarantor, unless (i) subject to the provisions of Section 4.1(e), the Person formed except as permitted by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized Sections 10.04 and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied10.05 hereof.
(ed) In the event of a sale This Section 5.01 shall not apply to any sale, assignment, transfer, conveyance or other disposition of all assets between or among the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released Issuer and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofRestricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (CNX Resources Corp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivor), or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, transactions to another Person Person, unless: :
(ia) either (A1) such Issuer is the surviving entity of such transaction; survivor or (B2) the Person formed by or surviving any such consolidation or merger (if other than such IssuerIssuer ) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided however, that EOTT Finance Corp. may not consolidate or merge with or into any entity other than Person unless the Person formed by or surviving such consolidation or merger is a corporation satisfying such requirement for so long as the Company remains is not a limited liability company; corporation;
(iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and the applicable Registration Rights Agreement pursuant to a supplemental indentures indenture or other agreement in forms a form reasonably satisfactory to the Trustee; ;
(iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(ivd) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Corp., such Issuer either;
(i) the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, lease, conveyance or other disposition shall have been made will, on the date of such transaction immediately after giving pro forma effect thereto and to any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; or
(ii) immediately after giving effect to such transaction and to any related financing transactions on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation or merger (vif other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately before such transactions; and
(e) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies (if any) comply with this Indenture and all conditions precedent therein relating Indenture; provided, however, that such counsel may rely, as to such transaction has been satisfied.
(b) matters of fact, on a certificate or certificates of officers of the General Partner. Notwithstanding the restrictions described in the foregoing paragraphclause (d), (i) any Restricted Subsidiary (other than Finance Corp.) may consolidate with, merge into or dispose of all or part of its properties and assets to the Company or (ii) the Company may consolidate or merge with or into a Subsidiary of the Company, in each case, without the Company being required to comply with the preceding clause (d) in connection with any such consolidation, merger or disposition. Notwithstanding the second preceding paragraph of this Section 5.01, the Company is permitted to may reorganize as any other form of entity in accordance with the procedures established in this Indenture; following procedures, provided that that:
(i1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii3) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv4) immediately after such reorganization no Default or Event of Default exists; and
(v5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (v5) a reorganization shall will not be considered materially adverse to the Holders or Beneficial Owners of the Notes (A) solely because the successor or survivor of such reorganization (xa) is subject to federal or state income taxation as an entity or (yb) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i1504(b) of the Code or any similar state or local law law). Upon any consolidation or (B) because there merger or any disposition of all or substantially all of the properties or assets of the Company in accordance with the foregoing, in which the Company is a Rating Decline due solely not the surviving entity, the surviving entity formed by such consolidation or into which the Company is merged or to factors other than which such disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with Company under this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to the Registration Rights Agreement with the same effect as if such surviving entity had been named as such, and thereafter (except in the case of a supplemental indenture in form reasonably satisfactory to lease of all or substantially all of the Trustee, (ii) immediately after giving effect to such transaction, no Default Company’s properties or Event of Default exists and (iiiassets) the Company has delivered to the Trustee an Officers' Certificate will be relieved of all obligations and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with covenants under this Indenture and all conditions precedent therein relating to such transaction have been satisfiedthe Notes.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Genesis Energy Lp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Borrower will not, directly or indirectly, : (a) consolidate or merge with or into another Person (whether or not such Issuer the Borrower is the survivorsurviving corporation); or (b) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person; unless: :
(i) either (A) such Issuer the Borrower is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; ;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer the Borrower under the Notes and this Indenture Loan Documents pursuant to supplemental indentures in forms joinder agreements or other documents and agreements reasonably satisfactory to the Trustee; Administrative Agent;
(iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and
(ivA) immediately after giving pro forma effect to such transaction, such Issuer the Borrower or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Borrower), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph provisions of Section 5.12 hereof; and (v6.01(a) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to Fixed Charge Coverage Ratio of the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger Borrower or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantorthe Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately is greater after giving pro forma effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, and any related financing transactions as if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all same had occurred at the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all beginning of the Equity Interests of such Subsidiary Guarantor) or applicable four-quarter period than the Person acquiring Borrower’s actual Fixed Charge Coverage Ratio for the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereofperiod.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Issuer shall consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an a corporation or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; and (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of one of the Issuers with or into a Wholly Owned Subsidiary of Holdings, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers), except in or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the case of such a transaction involving EOTT Finance, will, on the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) . Notwithstanding the foregoing paragraphforegoing, the Company Holdings is permitted to reorganize as any other form of entity a corporation in accordance with the procedures established in this IndentureIndenture (and Grove Holdings Capital may thereafter liquidate); provided that Holdings shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, if applicable, liquidation of Grove Holdings Capital) is not adverse to Holders of the Debentures (it being recognized that such reorganization shall not be deemed adverse to Holders of the Debentures solely because (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form accrual of entity other than a limited liability company formed under Delaware law; deferred tax liabilities resulting from such reorganization or (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization surviving corporation (xa) is subject to federal or state income taxation tax as an a corporate entity or (yb) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (Blaw) because there is a Rating Decline due solely to factors and certain other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been are satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Company shall not, directly or indirectly, : (1) consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivorsurviving corporation); or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person; unless:
(a) either: (i) either (A) such Issuer the Company is the surviving entity of such transactioncorporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such Issuersale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of such Issuer the Company under the Notes and this the Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iiic) immediately after giving such transaction, on a pro forma basis giving effect to such transaction or series of transactions (and treating any obligation of the Company or any Restricted Subsidiary incurred in connection with or as a result of such transaction or series of transactions as having been incurred at the time of such transaction), no Default or Event of Default exists; and
(ivd) immediately after giving pro forma effect except in the case of a transaction entered into to such transactionreincorporate the Company in another jurisdiction, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, conveyance or other disposition has been made, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and 4.03 of this Sixth Supplemental Indenture or (vii) have a Fixed Charge Cover Ratio that is no worse than the Fixed Charge Cover Ratio of the Company for such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating applicable four-quarter period without giving pro forma effect to such transaction has been satisfied.
(b) Notwithstanding transactions and the foregoing paragraphrelated financing transactions. In addition, the Company is permitted to reorganize as any other form may not, directly or indirectly, lease all or substantially all of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution properties or exchange of assets or otherwise) of the Company into and its Restricted Subsidiaries, taken as a form of entity whole, in one or more related transactions, to any other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Person. This Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 5.01 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, assets between or among the Company and any of its Wholly-Owned Restricted Subsidiariesthe Guarantors.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of Permit Holdings or the Issuers shall, directly or indirectly, Borrower to consolidate or merge with or into another Person or wind up into (whether or not such Issuer Holdings or the Borrower, as the case may be, is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactionstransactions to, to another Person unless: any Person; provided that the foregoing shall be permitted if (i) either (A) such Issuer Holdings or the Borrower, as the case may be, is the surviving entity of such transaction; corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than such IssuerHoldings or the Borrower, as the case may be) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been is made is a corporation organized or existing under the laws of the jurisdiction of organization of Holdings or the Borrower, as the case may be, or the United States, any state thereof, the District of Columbia or any territory thereof (Holdings, the Borrower or such Person, as the case may be, being herein called the "SUCCESSOR COMPANY"); (ii) the Successor Company (if other than Holdings or the Borrower) expressly assumes all the obligations of such Issuer Holdings or the Borrower, as the case may be, under this Agreement and the Notes and this Indenture Loans pursuant to supplemental indentures an agreement or other documents or instruments in forms form reasonably satisfactory to the TrusteeAdministrative Agent; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such transaction would occur would have been either (A) at least 2.00 to 1.00 or (B) greater than immediately prior to such transaction, such Issuer or in each case determined on a pro forma basis (including a pro forma application of the Person formed by or surviving any such consolidation or merger (if other than such Issuernet proceeds therefrom), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable such four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization each Guarantor, unless it is not materially adverse the other party to the Holders of the Notes (for purposes of this transactions described above, in which case clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect shall apply, shall have confirmed in writing that its Guarantee shall apply to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any Person's obligations under its Subsidiary Guaranteethis Agreement and the Loans; provided that the transaction complies with the provisions of Section 5.14 hereof.and
Appears in 1 contract
Sources: Senior Subordinated Bridge C Loan Agreement (Celanese Ag)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Company will not, directly or indirectly: (A) amalgamate, consolidate or merge with or into another Person (whether or not such Issuer the Company is the survivorPerson formed by or surviving any such amalgamation, consolidation or merger); or (B) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Company and the Restricted Subsidiaries, taken as a whole, in each case, in one transaction or more a series of related transactions, including by way of liquidation or dissolution, to another Person Person, unless: :
(i1) either (Ax) such Issuer is the Company will be the surviving entity of such transaction; or continuing Person or (By) the Person formed by or surviving any such amalgamation, consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of a Permitted Jurisdiction (the United StatesCompany or such Person, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; case may be, being herein called the “Successor Company”);
(ii2) the Person formed by or surviving any such consolidation or merger Successor Company (if other than such Issuerthe Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant the other Notes Obligations and the Collateral Documents to supplemental indentures in forms reasonably satisfactory to which the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization Company is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered party, if any, and agrees to be an "includible corporation" bound by all the provisions of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture Collateral Documents pursuant to a supplemental indenture in form reasonably satisfactory to the Trusteeor an amendment thereto, as applicable;
(ii3) immediately before and after giving effect to such transaction, no Default or Event of Default exists shall have occurred and be continuing;
(iii4) except with respect to a transaction solely between or among the Company and any of the Restricted Subsidiaries, immediately after giving pro forma effect to such transaction, any related financing transactions and the use of proceeds therefrom and treating any Indebtedness that becomes an obligation of the Company or any of the Restricted Subsidiaries as a result of such transaction as having been Incurred by the Company or such Restricted Subsidiary, as the case may be, at the time of the transaction, the Company could Incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a);
(5) in the event that the Successor Company is organized in a jurisdiction that is different from the jurisdiction in which the Company was organized immediately before giving effect to such transaction, the Successor Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel stating that the obligations of the Successor Company under this Indenture are enforceable under the laws of such Permitted Jurisdiction, each stating subject to customary exceptions;
(6) if applicable, the Successor Company causes such consolidation amendments, supplements or merger andother instruments with respect to the Collateral Documents to be executed, if a supplemental indenture is requireddelivered, filed and recorded, as applicable, in such supplemental indenture complies with jurisdictions as may be required by applicable law to preserve and protect the Lien of the First Lien Collateral Agent on any Collateral owned by or transferred to the Successor Company and delivers an opinion of counsel as to the enforceability thereof and such other matters as the Trustee may reasonably request;
(7) any Collateral owned by or transferred to the Successor Company shall (a) continue to constitute Collateral under this Indenture and all conditions precedent therein relating the Collateral Documents, (b) be subject to such transaction have been satisfied.the Lien in favor of the First Lien Collateral Agent for the benefit of the holders of the First Lien Obligations and (c) not be subject to any other Lien other than Permitted Collateral Liens; and
(e8) the Company or Successor Company delivers to the Trustee an Officers’ Certificate stating that such amalgamation, consolidation, merger or transfer and any supplemental indentures and each amendment comply with this Section 5.01(a). For purposes of the foregoing, (i) In entry by the event Company or any Subsidiary of the Company into one or more Drilling Contracts or other charters, pool agreements or drilling contracts with respect to any Vessels entered into in the ordinary course of business will be deemed to not constitute a sale sale, assignment, transfer, conveyance or other disposition subject to this Section 5.01(a) and (ii) any Vessel Sale or Involuntary Vessel Transfer with respect to (x) more than one Deepwater Vessel or (y) a Deepwater Vessel and one or more Jackup Rigs will be deemed to constitute a sale, assignment, transfer, conveyance or other disposition of substantially all the properties and assets of the Company subject to this Section 5.01(a). Clause (3) above will not apply to a merger of the Company with an Affiliate if such merger is consummated for the sole purpose of reincorporating the Company in another jurisdiction.
(b) The Company shall not permit any Subsidiary Guarantor to, directly or indirectly, amalgamate, consolidate or merge with or into (whether or not such Guarantor is the surviving Person), another Person other than the Company or another Guarantor or sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor, in one transaction or a series of related transactions, including by way of mergerliquidation or dissolution, consolidation to another Person, unless:
(1) (A) immediately after giving effect to such transaction or otherwiseseries of related transactions, no Default or a sale or other disposition Event of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.Default exists;
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivor), or (2) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, transactions to another Person Person, unless: :
(ia) either (A1) such Issuer is the surviving entity of such transaction; survivor or (B2) the Person formed by or surviving any such consolidation or merger (if other than such IssuerIssuer ) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; provided, provided however, that EOTT Finance Corp. may not consolidate or merge with or into any entity other than Person unless the Person formed by or surviving such consolidation or merger is a corporation satisfying such requirement for so long as the Company remains is not a limited liability company; corporation;
(iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and Notes, this Indenture and the applicable Registration Rights Agreement pursuant to a supplemental indentures indenture or other agreement in forms a form reasonably satisfactory to the Trustee; ;
(iiic) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(ivd) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Corp., such Issuer either;
(i) the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuerthe Company), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, lease, conveyance or other disposition shall have been made will, on the date of such transaction immediately after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; or
(ii) immediately after giving effect to such transaction and any related financing transactions on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation or merger (vif other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately before such transactions; and
(e) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, disposition and such supplemental indenture complies (if any) comply with this Indenture and all conditions precedent therein relating Indenture; provided, however, that such counsel may rely, as to such transaction has been satisfied.
(b) matters of fact, on a certificate or certificates of officers of the General Partner. Notwithstanding the restrictions described in the foregoing paragraphclause (d), (i) any Restricted Subsidiary (other than Finance Corp.) may consolidate with, merge into or dispose of all or part of its properties and assets to the Company or (ii) the Company may consolidate or merge with or into a Subsidiary of the Company, in each case, without the Company being required to comply with the preceding clause (d) in connection with any such consolidation, merger or disposition. Notwithstanding the second preceding paragraph of this Section 5.01, the Company is permitted to may reorganize as any other form of entity in accordance with the procedures established in this Indenture; following procedures, provided that that:
(i1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii3) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv4) immediately after such reorganization no Default or Event of Default exists; and
(v5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (v5) a reorganization shall will not be considered materially adverse to the Holders or Beneficial Owners of the Notes (A) solely because the successor or survivor of such reorganization (xa) is subject to federal or state income taxation as an entity or (yb) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i1504(b) of the Code or any similar state or local law law). Upon any consolidation or (B) because there merger or any disposition of all or substantially all of the properties or assets of the Company in accordance with the foregoing, in which the Company is a Rating Decline due solely not the surviving entity, the surviving entity formed by such consolidation or into which the Company is merged or to factors other than which such disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with Company under this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to the Registration Rights Agreement with the same effect as if such surviving entity had been named as such, and thereafter (except in the case of a supplemental indenture in form reasonably satisfactory to lease of all or substantially all of the Trustee, (ii) immediately after giving effect to such transaction, no Default Company’s properties or Event of Default exists and (iiiassets) the Company has delivered to the Trustee an Officers' Certificate will be relieved of all obligations and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with covenants under this Indenture and all conditions precedent therein relating to such transaction have been satisfiedthe Notes.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (Genesis Energy Lp)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Texas Genco LLC may not consolidate or merge with or into another Person (whether or not such Issuer Texas Genco LLC is the survivor) surviving entity, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets, assets in one or more related transactions, to another Person Person, unless: :
(i1) either either:
(A) such Issuer Texas Genco LLC is the surviving entity of such transactioncompany; or or
(B) the Person formed by or surviving any such consolidation or merger (if other than such IssuerTexas Genco LLC) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have has been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or thereof, the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying territory thereof (such requirement for so long Person, as the Company remains a limited liability company; case may be, being herein called the “Successor Company”);
(ii2) the Person formed by or surviving any such consolidation or merger (Successor Company, if other than such Issuer) or the Person to which such saleTexas Genco LLC, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer Texas Genco LLC under this Indenture and the Notes and this Indenture pursuant to supplemental indentures or other documents or instruments in forms form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(iii4) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, :
(A) the Successor Company would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09(a) hereof; or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be greater than such ratio for Texas Genco LLC and the Restricted Subsidiaries immediately prior to such transaction;
(v5) each Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(b)(1)(B) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Issuer has Person’s obligations under the Indenture and the Notes; and
(6) Texas Genco LLC shall have delivered to the Trustee an Officers' Officer’s Certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger or transfer andand such supplemental indentures, if a supplemental indenture is requiredany, such supplemental indenture complies comply with this the Indenture. The Successor Company will succeed to, and be substituted for, Texas Genco LLC under the Indenture and all conditions precedent therein relating to such transaction has been satisfied.
(b) the Notes. Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that clauses (i3) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (x) is subject to federal or state income taxation as an entity or (y) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.4):
Appears in 1 contract
Sources: Indenture (Texas Genco Inc.)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallmay, directly or indirectly, : (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) 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 another Person Person, unless: :
(i) either either: (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance Co may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; requirement;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and Notes, this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; ;
(iv) immediately after giving pro forma effect to such transactionin the case of a transaction involving the Company and not Finance Co, such Issuer the Company or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, Company) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, (A) be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (B) have a Fixed Charge Coverage Ratio for such four-quarter period equal to or greater than the first paragraph of Fixed Charge Coverage Ratio immediately before such transaction; provided that this Section 5.12 hereof5.01(a)(iv) shall be terminated after the Company and its Restricted Subsidiaries are not subject to the Terminated Covenants; and and
(v) such Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer disposition and, if a supplemental indenture is required, such supplemental indenture complies comply with this Indenture and all conditions precedent therein relating to such transaction has have been satisfied.
(b) Notwithstanding the foregoing paragraphSection 5.01(a), the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company partnership formed under Delaware law; ;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law laws of the United States, any state thereof or the District of Columbia; ;
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations Obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms agreements reasonably satisfactory to the Trustee; ;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (vSection 5.01(b)(v) a it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization (xA) is subject to federal or state income taxation as an entity or (yB) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether except the Company or not affiliated with such another Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless unless: (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists exists, and (iiiii) the Company has Person formed by or surviving any such consolidation or merger assumes all the obligations of such Subsidiary Guarantor pursuant to a supplemental indenture substantially in the form of Annex A hereto, except that no such assumption or supplemental indenture shall be required in those circumstances described in Section 10.05 hereof. Subject to the foregoing exception, in case of any such consolidation or merger and upon the assumption by the successor Person by supplemental indenture, executed and delivered to the Trustee an Officers' Certificate substantially in the form of Annex A hereto, of the Guarantees contained herein and an Opinion the due and punctual performance of Counselall of the covenants of this Indenture to be performed by the Subsidiary Guarantor, each stating such successor shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor thereupon may cause to be signed any or all of the notations of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been issued at the date of the execution hereof.
(d) Notwithstanding anything in this Section 5.01 to the contrary, in the event the Company becomes a corporation or the Company or the Person formed by or surviving any consolidation or merger and(permitted in accordance with the terms of this Indenture) is a corporation, if a supplemental indenture is required, such supplemental indenture complies Finance Co may be dissolved in accordance with this Indenture and all conditions precedent therein relating may cease to such transaction have been satisfiedbe an Issuer.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: First Supplemental Indenture (Penn Virginia Resource Partners L P)
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shallThe Issuer shall not, directly or indirectly, (x) consolidate or merge with or into another Person (whether or not such the Issuer is the survivor), or (y) or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person Person, unless: :
(i1) either (Aa) such the Issuer is the surviving entity of such transaction; Person or (Bb) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer) or to which such sale, assignment, transfer, leaseconveyance, -43- conveyance lease or other disposition shall have has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that at any time such surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(2) the "SUCCESSOR COMPANY"Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either
(A) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Ratio of the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, is equal to or greater than the Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; and
(5) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and such supplemental indenture, if any, comply with this Indenture.
(b) Notwithstanding the restrictions described in Sections 5.01(a)(3), 5.01(a)(4) or 5.01(a)(5), (i) any Restricted Subsidiary of the Issuer may consolidate with or merge into the Issuer and (ii) the Issuer may consolidate with or merge into or dispose all or substantially all of its properties or assets to any Guarantor; and the Issuer, in the case of (i) or (ii), will not be required to comply with Sections 5.01(a)(3), 5.01(a)(4) or 5.01(a)(5) in connection with any such consolidation, merger or disposition.
(c) Notwithstanding Section 5.01(a), the Issuer may reorganize as any other form of entity in accordance with the following procedures:
(1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Issuer into a form of entity other than a corporation formed under Delaware law;
(2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transaction, such Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuer), except in the case of such a transaction involving EOTT Finance, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction has been satisfied.;
(b) Notwithstanding the foregoing paragraph, the Company is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited liability company formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii3) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company Issuer under the Notes and this Indenture pursuant to a supplemental indentures indenture or other agreement in forms a form reasonably satisfactory to the Trustee; ;
(iv4) immediately after such reorganization no Default or Event of Default exists; and
(v5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (v5) a reorganization shall will not be considered materially adverse to the Holders or Beneficial Owners of the Notes (A) solely because the successor or survivor of such reorganization (xa) is subject to federal or state income taxation as an entity or (yb) is considered to be an "“includible corporation" ” of an affiliated group of corporations within the meaning of Section 1504(b)(i1504(b) of the Code or any similar state or local law or (B) because there is a Rating Decline due solely to factors other than the reorganizationlaw); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary A Guarantor shall may not sell or otherwise dispose of, in one or a series of related transactions, all or substantially all of its properties or assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company Issuer or a Wholly-Owned Restricted Subsidiaryanother Guarantor, unless unless:
(i1) subject immediately after giving effect to such transaction or series of transactions, no Default or Event of Default exists
(2) either:
(A) the provisions of Section 4.1(e), Person acquiring the properties or assets in any such sale or other disposition or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary the Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and unconditionally assumes all the obligations of such Subsidiary that Guarantor pursuant to the Subsidiary Guarantor's Subsidiary under its Guarantee of the Notes and this Indenture pursuant to a supplemental indenture or other agreement in form reasonably satisfactory to the Trustee, ; or
(iiB) immediately after giving effect to such transaction, no Default transaction or Event series of Default exists and transactions does not violate Section 4.10; and
(iii3) the Company Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation consolidation, merger or merger anddisposition and such supplemental indenture, if a any, comply with this Indenture. In case of any such consolidation, merger, sale or other disposition and upon the assumption by the successor Person, by supplemental indenture is requiredindenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Guarantee of the Guarantor and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such supplemental indenture complies successor Person will succeed to and be substituted for the Guarantor with this Indenture and all conditions precedent therein relating to such transaction have the same effect as if it had been satisfiednamed herein as a Guarantor.
(e) In For purposes of this Section 5.01, the event of a transfer (by lease, assignment, sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, in a single transaction or a sale or other disposition series of transactions) of all or substantially all of the Equity Interests properties or assets of any Subsidiary Guarantorone or more Restricted Subsidiaries of the Issuer, then such Subsidiary Guarantor the Capital Stock of which constitutes all or substantially all of the properties or assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Issuer.
(in the event f) Any reference herein to a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a sale limited liability company, limited partnership or other disposition, by way trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation consolidation, amalgamation, assignment, sale, disposition or otherwisetransfer, or similar term, as applicable, to, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event with a separate Person. Any division of a sale limited liability company, limited partnership or other disposition of all the assets of such Subsidiary Guarantor) will be released trust shall constitute a separate Person hereunder (and relieved each division of any obligations under its Subsidiary Guarantee; provided limited liability company, limited partnership or trust that the transaction complies with the provisions of Section 5.14 hereofis a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) Neither of the Issuers shall, directly or indirectly, Issuer shall consolidate or merge with or into another Person (whether or not such Issuer is the survivor) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets in one or more related transactions, to another Person unless: unless (i) either (A) such Issuer is the surviving entity of such transaction; Person or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indentures indenture in forms a form reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to such transactionexcept in the case of a merger of one of the Issuers with or into a Wholly Owned Subsidiary of the Company, such the Issuer or the Person formed by or surviving any such consolidation or merger (if other than such Issuerone of the Issuers), except in the case of or to which such a transaction involving EOTT Financesale, assignment, transfer, lease, conveyance or other disposition shall have been made will, on at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.12 4.09 hereof; and (v) such Issuer the Company has delivered to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or transfer and, if a supplemental indenture is required, other disposition and such supplemental indenture complies with this Indenture and that all conditions precedent therein provided for in this Indenture and that all conditions precedent provided for in this Indenture relating to such transaction has have been satisfied.
(b) complied with. Notwithstanding the foregoing paragraphforegoing, the Company is permitted to reorganize as any other form of entity a corporation in accordance with the procedures established in this Indenturethe Indenture (and Grove Capital may thereafter liquidate); provided that the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, if applicable, liquidation of Grove Capital) is not adverse to holders of the Notes (it being recognized that such reorganization shall not be deemed adverse to the holders of the Notes solely because (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form accrual of entity other than a limited liability company formed under Delaware law; deferred tax liabilities resulting from such reorganization or (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the law of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to supplemental indentures in forms reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; (v) such reorganization is not materially adverse to the Holders of the Notes (for purposes of this clause (v) a reorganization shall not be considered materially adverse to the Holders of the Notes (A) solely because the successor or survivor of such reorganization surviving corporation (xa) is subject to federal or state income taxation tax as an a corporate entity or (yb) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law or (Blaw) because there is a Rating Decline due solely to factors and certain other than the reorganization); and (vi) such issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such reorganization and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been are satisfied.
(c) The provisions of Section 4.1 will not apply to a merger or consolidation, or any sale, assignment, transfer, lease, conveyance or other disposition of assets, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, other than the Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the provisions of Section 4.1(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of the jurisdiction under which such Subsidiary Guarantor was organized and assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee of the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, (ii) immediately after giving effect to such transaction, no Default or Event of Default exists and (iii) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating such consolidation or merger and, if a supplemental indenture is required, such supplemental indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the transaction complies with the provisions of Section 5.14 hereof.
Appears in 1 contract
Sources: Indenture (National Crane Corp)