Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless: (1) either: (A) the Company is the surviving corporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, 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; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto; (2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; and (4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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). (b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. (c) This Section 5.01 shall not apply to: (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; (2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or (3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Indenture (Platte Chemical Co)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such a sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such the transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such a 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, 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).
(b) The hereof. In addition, the Company shall will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Collateral Documents pursuant to agreements reasonably satisfactory to the Trustee, including, without limitation, an Opinion of Counsel and an Officers’ Certificate stating that such consolidation or merger is authorized or permitted by the terms of this Indenture and that all conditions precedent relating to such transaction have been satisfied;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the Company, beginning of the applicable four-quarter period:
(A) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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).) hereof; or
(bB) The the Fixed Charge Coverage Ratio for the Company shall or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would be greater than or equal to the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
. Clauses (c3) This and (4) of this Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Indenture (KCG Holdings, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) Person); or (2ii) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporationPerson; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other agreements;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame had occurred at the beginning of the applicable Reference Period, either (A) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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) hereof or (B) the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and
(5) the Company 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries. Section 5.01(a)(3) and Guarantors(a)(4) will not apply to any merger or consolidation of the Company with or into, or any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the Company’s properties or assets to, (i) a Restricted Subsidiary of the Company for any purpose or (ii) an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction. Notwithstanding the foregoing, the Company will be permitted to reorganize as any other form of entity; orprovided that:
(1) 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 partnership 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;
(3) any consolidation the entity so formed by or merger between or among resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee;
(4) immediately after such reorganization no Default or Event of Default exists; and
(5) such reorganization is not adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered adverse to the Holders or Beneficial Owners of the 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) of the Code or any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorssimilar state or local law).
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and the properties or assets of its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1a) either:
: (Ax) the Company is the surviving corporation; or
or (By) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2b) 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, conveyance or other disposition has been made assumes all the obligations of the Company Company’s obligations under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3c) immediately after such transaction, transaction no Default or Event of Default exists; and
(4d) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, 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, (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(a4.09 or (ii) the Company’s Fixed Charge Coverage Ratio, or that of the Person formed by or surviving any such consolidation or merger (if other than the Company).
(b) The , shall not be less than the Company’s Fixed Charge Coverage Ratio immediately prior to such transaction or series of transactions. In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its the Company’s properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance 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
(bB) The have a Fixed Charge Coverage Ratio equal to or greater than such ratio for the Company shall and its Restricted Subsidiaries for the Company's most recently ended four full fiscal quarters for which internal financial statements are available. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and or assets taken as a whole of it and its Restricted Subsidiaries taken as a wholeSubsidiaries, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Carmike Cinemas Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia (provided that does if such Person is not and will not have any material assets or operations becomes a corporation, such Person shall be required to cause a subsidiary of such Person that is a corporation to be a co-issuer of obligor under the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoNotes);
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade, 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:
(A) 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).) hereof; or
(bB) The would have a Fixed Charge Coverage Ratio greater than the Fixed Charge Coverage Ratio of the Company shall prior to such transaction. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, convey (not including any conveyance, if any, resulting solely from the creation of any Lien, unless remedies are exercised in connection therewith) or otherwise dispose of all or substantially all of the properties or and assets of the Company and the properties and assets of the Company or its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another PersonPerson or Persons; unless:
(1a) either:
: (Ax) the Company is the surviving corporation; or
or (By) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2b) 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, conveyance or other disposition has been made assumes all the obligations of the Company Company’s obligations under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements an agreement in a form reasonably satisfactory to the Trustee;
(3c) immediately after such transaction, transaction no Default or Event of Default exists; and
(4d) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, 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, (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(a4.09 or (ii) the Company’s Fixed Charge Coverage Ratio, or that of the Person formed by or surviving any such consolidation or merger (if other than the Company).
(b) The , shall not be less than the Company’s Fixed Charge Coverage Ratio immediately prior to such transaction or series of transactions. In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its the Company’s properties and assets of it and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to any other Person.
. Clauses (c) This and (d) of this Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Talecris Biotherapeutics Holdings Corp.)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly, in one or more related transactions: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to another Person; unless:
(1i) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or 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; provided that if the Person is a partnership or limited liability company, 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 shall not have any material assets or operations becomes shall promptly thereafter become a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoindenture;
(2ii) 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, conveyance or other disposition has been made expressly assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture executed and delivered to the Trustee in form reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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).
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Indenture (Cinemark Usa Inc /Tx)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia that does and, if such entity is not and will not have any material assets or operations becomes a corporation, a co-issuer obligor of the Notes pursuant to is a supplemental indenture substantially in the form of Exhibit E attached heretocorporation organized or existing under any such laws;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations Obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to a supplemental indenture substantially in the Trusteeform of Exhibit F hereto;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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; and
(b5) The other than with respect to mergers or consolidations of a Guarantor into another Guarantor or the Company, the Company shall notdeliver to the Trustee an Officers’ Certificate stating that such consolidation, directly or indirectlymerger, sale, assignment, transfer, conveyance, lease or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, conditions precedent herein provided for relating to any other Person.
(c) such transaction have been complied with. This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-any Wholly Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiary of the Company. Clauses (3), (4) and (5) of this Section 5.01 will not apply to (a) any merger or consolidation of any Restricted Subsidiary with or into the Company or (b) a merger between or among consolidation of the Company with or into an Affiliate for the purpose of reincorporating the Company in another jurisdiction so long as the amount of Indebtedness of the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsis not increased thereby.
Appears in 1 contract
Sources: Indenture (BioScrip, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the NotesNotes and this Indenture, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture or other agreements reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, transaction no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldshall, 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, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant under the Consolidated Coverage Ratio Test or (ii) (A) would have a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio of the Company immediately prior to such transaction and without taking into account such transaction and any related financing transactions and (B) has received and delivered to the Fixed Charge Coverage Ratio test set forth in Section 4.09(aTrustee letters from Moody's and S&P stating that the High Yield Notes (if any are ▇▇▇▇▇▇▇ding at that time), after giving effect to such transaction and any related financing transactions, will be rated at least "Ba1" and "BB" by such agencies, respectively; and
(5) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture.
(b) The In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall 5.1 will not apply to:
prohibit (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2i) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any Restricted Subsidiary, (ii) any Restricted Subsidiary from consolidating with, merging into or transferring all or part of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orassets to the Company, or (iii) the Company from merging with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
(3c) In the event of any consolidation or merger between or among transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraph in which the Company is not the surviving Person and any the surviving Person is to assume all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, such surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company, and the Company would be discharged from its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries obligations under this Indenture and Guarantorsthe Notes.
Appears in 1 contract
Sources: Indenture (Covanta Energy Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) merge, amalgamate or consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of Canada, any province or territory of Canada, the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Collateral Agreements pursuant to agreements reasonably satisfactory to the TrusteeTrustees or the Collateral Agent, as applicable, or is liable for those obligations by operation of law;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company), 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, (i) be permitted to incur at least $US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a4.08(a); or (ii) have had a Fixed Charge Coverage Ratio not less than the actual Fixed Charge Coverage Ratio for the Company pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a).
(b) The In addition, the Company shall not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and any one or more of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among any one or more of the Company Company’s Restricted Subsidiaries.
(d) Section 5.01(a)(3) and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.Section 5.01(a)
Appears in 1 contract
Sources: Indenture (Taseko Mines LTD)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) except in the Companycase of the Merger, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any of the Guarantors (including [Newco] on the Acquisition Date). Notwithstanding anything in this Indenture, a Restricted Subsidiary may consolidate with, merge into or convey, lease, sell, assign, transfer or otherwise dispose of all or part of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries properties and Guarantors; or
(3) any consolidation or merger between or among assets to the Company or a Restricted Subsidiary; and any the Company may merge with an Affiliate incorporated solely for the purpose of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsreincorporating the Company in another jurisdiction in the United States to realize tax or other benefits.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Security Documents and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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 4.09(a).
(b) The . In addition, the Company shall not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of property or assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Indenture (National Coal Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) , consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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).
(b) hereof. The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and the Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) entity); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets (such amounts to be computed on a consolidated basis) of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is either (i) a corporationcorporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia or (ii) a 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; provided Columbia that if the Person has at least one Restricted Subsidiary that is a partnership or limited liability company, 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 Columbia, which corporation becomes a the co-issuer of the Notes pursuant to a supplemental indenture substantially in reasonably satisfactory to the form of Exhibit E attached heretoTrustee;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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).
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to another Person; , unless:
(1i) either:
: (A) the Company is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is is, in the case of the Company, a corporation, partnership corporation or limited liability company organized or existing under the laws of the United States, any member state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability companyEuropean Union, 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 (the Company or operations becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or Person, including the Person to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made made, as the case may be, being herein called the “Successor Company”), provided, that at any time the Successor Company is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii) the Successor Company (if other than the Company) assumes all the obligations of the Company Company, under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, no Default or Event of Default exists; and
(4iv) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction immediately after giving pro forma effect thereto to such transaction and any related financing transactions transactions, as if the same had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction. The foregoing provision shall also apply to any Guarantor, with the exception of clause (iv).
(b) The Company shall notFor purposes of this Article 5, directly the sale, lease, conveyance, assignment, transfer or indirectly, lease other disposition of all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactionsRestricted Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to any be the sale, lease, conveyance, assignment, transfer or other Persondisposition of all or substantially all of the properties and assets of the Company.
(c) This For avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of the Company and its Subsidiaries that, in the aggregate accounted for no more than two-thirds of the Company’s aggregate EBITDA during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an Officers’ Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Company.
(d) The predecessor company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, but, in the case of a lease of all or substantially all its assets, the predecessor shall not be so released.
(e) Notwithstanding the foregoing, clauses (iii) and (iv) of Section 5.01 5.01(a) shall not apply to:
to (1A) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiaries, (3B) any consolidation Restricted Subsidiary consolidating with, merging into or merger between selling, assigning, transferring, conveying, leasing or among otherwise disposing of all or part of its properties and assets to the Company or to another Restricted Subsidiary (provided, that, in the event that such Restricted Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Company or another Guarantor) or (C) the Company merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction so long as the amount of Indebtedness of the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsis not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) indirectly consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
unless (1) either:
(Ai) the Company is the surviving corporation; or
(B) corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
; (3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
and (4iv) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a).
(b) The 4.09 hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This . The provisions of this Section 5.01 shall not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Wholly Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) merge, amalgamate or consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of Canada, any province or territory of Canada, the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Collateral Agreements pursuant to agreements reasonably satisfactory to the TrusteeTrustees or the Collateral Agent, as applicable, or is liable for those obligations by operation of law;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company), 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, (i) be permitted to incur at least $US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a4.08(a); or (ii) have had a Fixed Charge Coverage Ratio not less than the actual Fixed Charge Coverage Ratio for the Company pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a).
(b) The In addition, the Company shall not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and any one or more of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among any one or more of the Company Company's Restricted Subsidiaries.
(d) Section 5.01(a)(3) and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.Section 5.01(a)
Appears in 1 contract
Sources: Indenture (Taseko Mines LTD)
Merger, Consolidation or Sale of Assets. (a) The Company shall notNeither the Parent nor the Issuer may, directly or indirectly: (1i) consolidate merge, consolidate, amalgamate or merge otherwise combine with or into another Person (whether or not the Company Parent or the Issuer (as applicable) is the surviving corporation) ); or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Parent and its Restricted Subsidiaries taken as a whole or the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person; , unless:
(1i) either:
: (Aa) the Company Parent or the Issuer (as applicable) is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation merger, consolidation, amalgamation or merger other business combination (if other than the CompanyParent or the Issuer (as applicable)) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of any European Union Member State, Switzerland, Norway, Canada, the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the Person formed by or surviving any such consolidation merger, consolidation, amalgamation or merger other business combination (if other than the CompanyParent or the Issuer (as applicable)) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Issuer or the Parent (as applicable) under the NotesNotes or the Parent’s Guarantee, respectively, this Indenture and the Registration Rights Agreement Security Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default existsexists and is continuing; and
(4iv) the CompanyParent, the Issuer (as applicable) or the Person formed by or surviving any such consolidation merger, consolidation, amalgamation or merger other business combination (if other than the CompanyParent or the Issuer (as applicable)), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade:
(1) (unless the transaction involves a merger with a corporation having no Indebtedness, material assets, material contractual obligations or material liabilities, in which the Parent survived), 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, (i) will 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).4.3(a) (Incurrence of Indebtedness and Issuance of Preferred Stock) or (ii) the Consolidated Coverage Ratio remains the same or improves as a result of the transaction; and
(b2) The Company shall notfurnishes to the Trustee an Officers’ Certificate stating that the transaction complies with this Indenture. In addition, neither the Parent nor the Issuer shall, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 A Guarantor (other than the Parent) shall not:
(i) directly or indirectly merge, consolidate, amalgamate or otherwise combine with or into another Person (whether or not apply to:such Guarantor is the surviving corporation); or
(ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of its assets (including by way of liquidation or similar transaction), taken as a whole, in one or more related transactions, to another Person; unless
(1) a in the case of CEDC International sp. z.o.o. (“CEDC International”) (i) CEDC International is the surviving entity or (ii) the Person formed by surviving such merger of is incorporated in the Company with an Affiliate solely for same jurisdiction as the purpose of reincorporating Guarantor subject to the Company merger, in another jurisdictionthe United States or in the European Union;
(2) immediately after giving pro forma effect to such transaction, no Default or Event of Default exist and is continuing; and
(3) either:
(A) if such entity remains (or its successor will remain) a Guarantor, (A) such Guarantor is the surviving Person; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor or another Guarantor) or to which such sale, assignment, transfer, conveyance, lease conveyance or other disposition distribution has been made if not a Guarantor assumes all the obligations of assets between or among the Company that Guarantor under this Indenture and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsGuarantee pursuant to a supplemental indenture substantially in the form attached as Exhibit D hereto; or
(3B) the merger, consolidation, amalgamation or other combination or sale or disposition of all or substantially all of its assets complies with Section 4.12 (Asset Sales).
(c) Notwithstanding the preceding provisions of this Section 4.20:
(i) any consolidation Guarantor may merge, consolidate, amalgamate or merger between otherwise combine with or among into an Affiliate primarily for the Company and purpose of reincorporating such Guarantor under the laws of any European Union Member State, Switzerland, Norway, Canada, Russia, Cyprus, Luxembourg, the United States, any state of the United States or the District of Columbia (except that the Parent may so reincorporate only in any state of the United States or any European Member Union State); and
(ii) a Restricted Subsidiary may merge, consolidate, amalgamate or otherwise combine with or into or sell, assign, transfer, convey, lease or otherwise dispose of assets to the Parent or any of its WhollyRestricted Subsidiaries.
(d) Any successor entity (if other than a Guarantor or the Issuer, as the case may be) will succeed to, and be substituted for, and may exercise every right and power of, the non-Owned Restricted Subsidiaries that are Domestic Subsidiaries surviving Guarantor or the Issuer, as the case may be, under the Indenture, the Notes, the non-surviving Guarantor’s Guarantee, the Intercompany Loan and Guarantorsthe Security Documents (and other relevant agreements hereunder), in each case, to the extent a party thereto, and upon such substitution, the predecessor Person shall be released.
Appears in 1 contract
Sources: Indenture (CEDC Finance Corp LLC)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2ii) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such entity is not a corporation, a co-obligor of the Person Notes is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretosuch laws;
(2) 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 has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture or other agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, 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)5.09(a) or (B) have had a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period; and
(5) the Company 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall 6.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries. Section 6.01(a)(3) and Guarantors; or
(3a)(4) will not apply to any merger or consolidation or merger between or among of the Company and with or into, or any sale, assignment, transfer, conveyance, lease or other disposition of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsall or substantially all of the Company’s properties or assets to, a Guarantor solely for the purpose of reincorporating the Company in another jurisdiction.
Appears in 1 contract
Sources: First Supplemental Indenture (Bonanza Creek Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state State of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and Indenture, the Registration Rights Agreement and the Security Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
4.09. The preceding clause (b4) The shall not prohibit a merger between the Company shall and an Affiliate with no substantial assets or liabilities for the sole purpose of reincorporating the Company in another State of the United States or the District of Columbia. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Wholly Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Barneys New York Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall Partnership will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Partnership is the surviving corporation) entity), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Partnership and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company Partnership is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyPartnership) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyPartnership) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Partnership under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Partnership or the Person formed by or surviving any such consolidation or merger (if other than the CompanyPartnership), 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, 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) or (b) have had a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio for the Partnership for such four-quarter period; and
(5) the Partnership or the Person formed by or surviving any such consolidation or merger (if other than the Partnership), or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or other disposition and such supplemental indenture, if any, comply with this Indenture.
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cSection 5.01(a) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company Partnership and its Wholly-Owned Restricted Subsidiaries. Section 5.01(a)(3) and 5.01(a)(4) will not apply to (1) any merger or consolidation of the Partnership with or into one of its Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orfor any purpose, (2) any merger or consolidation of the General Partner with or into the Partnership for any purpose or (3) with or into an Affiliate solely for the purpose of reorganizing the Partnership in another jurisdiction. In addition, no provision of the above covenant shall prohibit a Corporate Conversion or any transaction related thereto.
(c) Notwithstanding the restrictions in Section 5.01(a), the Partnership is permitted to reorganize as any other form of entity in accordance with the procedures established herein, provided that:
(1) the reorganization involves the conversion (by merger, sale, legal conversion, contribution or exchange of assets or otherwise) of the Partnership into a form of entity other than a limited partnership 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;
(3) the entity so formed by or resulting from such reorganization assumes all the obligations of Partnership under the Notes and this Indenture in accordance with the procedures established herein;
(4) immediately after such reorganization no Default or Event of Default exists; and
(5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this Section 5.01(c)(5) a reorganization will not be considered materially adverse to the Holders or Beneficial Owners of the 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) of the Code or any consolidation similar state or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorslocal law).
Appears in 1 contract
Sources: Indenture (Hi-Crush Partners LP)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: Issuer may not (1) consolidate or merge with or into another Person (whether or not the Company Issuer is the surviving corporation) Person); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, transactions to another Person; unless:
(1) either:
: (Aa) the Company Issuer is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person organized or existing under the laws of the United States, any state of the United States or States, the District of Columbia that does not and will not have or any material assets territory thereof (the Issuer or operations becomes a co-issuer of such Person, as the Notes pursuant to a supplemental indenture substantially in case may be, being herein called the form of Exhibit E attached hereto“Successor Company”);
(2) the Person formed by or surviving any such consolidation or merger Successor Company (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Issuer under the Notes, this Indenture Indenture, and the Registration Rights Agreement pursuant to agreements in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction immediately after giving pro forma effect thereto to such transaction and any related financing transactions transactions, as if the same had occurred at the beginning of the applicable four-quarter period, either
(a) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The for the Successor Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholewould be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction; provided that, in one or more related transactions, to any other Person.
(c) This for the purposes of this Section 5.01 shall not apply to:
(1) only, neither a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any Music Publishing Sale nor a Recorded Music Sale will be deemed to be a sale, assignment, transfer, conveyanceconveyance 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, lease (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 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 5.01, 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 Company Issuer and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiaries. The foregoing clauses (3) and (4) shall not apply to the Merger. Notwithstanding the foregoing clauses (3) and (4), (i) any consolidation Restricted Subsidiary may consolidate with, merge into or merger between transfer all or among the Company and any part of its Wholly-Owned properties and assets to the Issuer 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 Officer’s Certificate certifying that the conditions set forth above are Domestic Subsidiaries satisfied and Guarantorsan Opinion of Counsel, which opinion may contain customary exceptions and qualifications, that the proposed transaction and the supplemental indenture, if any, comply with this Indenture.
Appears in 1 contract
Sources: Indenture (Warner Music Group Corp.)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1a) either:
: (Ai) the Company is the surviving corporation; or
or (Bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2b) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3c) immediately after such transaction, transaction no Default or Event of Default exists; and
(4d) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade:
(i) shall 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
(ii) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a).
(b) The 4.09. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall not 52 59 apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any of its Wholly-Wholly Owned Restricted Subsidiaries that which are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Indenture (Hercules Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporationPerson) or continue in another jurisdiction; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a wholeCompany, in one or more related transactions, to another Person; , unless:
(1a) either:
: (Ai) the Company is the surviving corporationPerson; or
or (Bii) the Person (the "Successor Company") formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition 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; provided that if the Person is a partnership or limited liability company, 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 becomes shall promptly thereafter become a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoindenture;
(2b) 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 has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture and other agreements reasonably satisfactory to the Trustee;
(3c) immediately after such transaction, transaction no Default or Event of Default exists; and;
(4d) either:
(i) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).3.3(a) hereof; or
(bii) The 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 (if 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) the Company shall nothave delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, directly each stating that such consolidation, merger or indirectlydisposition and such supplemental indenture (if any) comply with this Indenture. For purposes of this covenant, lease the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the assets of the Company. Notwithstanding the preceding clauses (c) and (d) of this Section 4.1, (x) any Restricted Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company or any Guarantor, and (y) the Company may merge with an Affiliate solely for the purpose of reincorporating or reorganizing the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease jurisdiction to realize tax or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsbenefits.
Appears in 1 contract
Sources: Indenture (TexCal Energy (LP) LLC)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09(a).
(b) The 4.09 hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall not apply to:
(1) a merger of Escrow Corp. with ACC;
(2) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; and
(23) any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1a) either:
: (Ai) the Company is the surviving corporation; or
or (Bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2b) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture in form reasonably satisfactory to the Trustee;
(3c) immediately after 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
(4d) except in the Companycase of a transaction entered into to reincorporate the Company in another jurisdiction, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) 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 4.09(a).
4.07 hereof or (bii) The have a Fixed Charge Coverage Ratio that is no worse than the Fixed Charge Coverage Ratio of the Company shall for such applicable four-quarter period without giving pro forma effect to such transactions and the related financing transactions. In addition, the Company may not, directly or indirectly, lease all or substantially all of its the properties and or assets of it the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and the Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it shall not, directly or indirectly: (1i) consolidate or merge with or into another Person person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition 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; provided that if the Person is a partnership or limited liability company, then a corporation wholly 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 becomes shall become a co-issuer of the Notes notes pursuant to a supplemental indenture substantially in duly executed by the form of Exhibit E attached heretotrustee;
(2) the Person person formed by or surviving any such consolidation or merger (if other than the Company) or the Person person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, such Securities and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;Trustee for such Securities; and
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) . In addition, the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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).
(b) The Company shall will not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) person. This Section 5.01 shall 5.1 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;jurisdiction or forming a direct holding company of the Company; or
(2) any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation Subsidiaries, including by way of merger or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsconsolidation.
Appears in 1 contract
Sources: Indenture (Neo Freehold-Gen LLC)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) directly or indirectly, consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporationentity; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee, provided, however, that at all times, a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia must be a co-issuer of the Notes;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance 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).) herein or
(bB) The have a Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio of the Company immediately prior to such transaction. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;jurisdiction or any other transaction the sole purpose of which is to reorganize the Company as a corporation; and
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Kraton Polymers LLC)
Merger, Consolidation or Sale of Assets. (a) The Company Issuer shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Issuer is the surviving corporation) survivor), or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company Issuer is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided provided, however, that if the at any time such surviving Person is a partnership limited liability company or limited liability companypartnership, there shall be a co-issuer of the Notes that is 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoColumbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company Issuer under the Notes, this Indenture and the any Registration Rights Agreement pursuant to agreements 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; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame 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 CompanyIssuer), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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).4.09; or
(bB) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger the Fixed Charge Coverage Ratio of the Company with an Affiliate solely for Issuer or the purpose of reincorporating Person formed by or surviving any such consolidation or merger (if other than the Company in another jurisdiction;
(2) any 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 Section 5.01(a)(4), (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 Section 5.01(a)(4) 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 provided that:
(1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets between or among otherwise) of the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orIssuer 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;
(3) any consolidation the entity so formed by or merger between or among resulting from such reorganization assumes all the Company obligations of the Issuer under the Notes, this Indenture, and any Registration Rights Agreement pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee;
(4) immediately after such reorganization no Default (other than a Reporting Default) or Event of its Wholly-Owned Default exists; and
(5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (5) a reorganization will not be considered materially adverse to the Holders or Beneficial Owners of the 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) of the Code or any similar state or local law).
(d) For purposes of this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsof the Issuer, 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.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it shall not, directly or indirectly: (1i) consolidate or merge with or into another Person person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition 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; provided that if the Person is a partnership or limited liability company, then a corporation wholly 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 becomes shall become a co-issuer of the Notes Securities pursuant to a supplemental indenture substantially in duly executed by the form of Exhibit E attached heretoTrustee;
(2) the Person person formed by or surviving any such consolidation or merger (if other than the Company) or the Person person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, such Securities and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;Trustee for such Securities; and
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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).
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall 5.1 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;jurisdiction or forming a direct holding company of the Company; or
(2) any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation Subsidiaries, including by way of merger or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsconsolidation.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) , consolidate or merge with or into another Person or wind up into (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company’s properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; any Person unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made is a corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state jurisdiction of organization of the United States Company or the District of Columbia; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person organized or existing under the laws of the United States, any state of the United States or thereof, the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that does in the case where the Successor Company is not and will not have any material assets or operations becomes a corporation, a co-issuer obligor of the Notes pursuant to is a supplemental indenture substantially in the form of Exhibit E attached heretocorporation;
(2) the Person formed by or surviving any such consolidation or merger (Successor Company, if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made expressly assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Notes, pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other documents or instruments;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction immediately after giving pro forma effect thereto to such transaction and any related financing transactions transactions, as if the same such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Company or the Successor Company, as applicable, 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 for the Company (or, if applicable, the Successor Company) and its Restricted Subsidiaries would be equal to or greater than such Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless (i) it is the other party to the transactions described above, in which case Section 5.01(b)(1)(B) shall apply or (ii) the Company is the surviving entity, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Company (or, if applicable, the Successor Company) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, complies with this Indenture. The Successor Company will succeed to, and be substituted for the Company, as the case may be, under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the foregoing clauses (3) and (4) of this Section 5.01(a),
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor, and
(2) the Company may merge with an Affiliate of the Company, as the case may be, solely for the purpose of reincorporating the Company in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) The No Subsidiary Guarantor will, and the Company shall notwill not permit any Subsidiary Guarantor to, directly consolidate or indirectlymerge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), lease or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply toPerson unless:
(1) a (A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2if other than such Guarantor) any or to which such sale, assignment, transfer, conveyancelease, lease conveyance or other disposition will have been made is a corporation, partnership, trust or limited liability company organized or existing under the laws of assets between the jurisdiction of organization of such Guarantor, as the case may be, or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
laws of the United States, any state thereof, the District of Columbia or any territory thereof (3) any consolidation such Guarantor or merger between or among such Person, as the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.case may be, being herein called the “Successor Person”);
Appears in 1 contract
Sources: Indenture (Element Solutions Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; Person unless:
: (1i) either:
: (A) the Company is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership or limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States State thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture in a form reasonably satisfactory to the Trustee;
; (3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
and (4iv) the Company, Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made wouldmade: (A) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same 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 4.09(a).
4.09; or (b) 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 its subsidiaries immediately prior to the transaction. The preceding clause (D) shall not prohibit (a) a merger between the Company shall and a Wholly Owned Subsidiary; or (b) 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, in each case, the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall not apply to:
(1) be applicable to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Wholly Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Team Health Inc)
Merger, Consolidation or Sale of Assets. (a) The Notes shall not have the benefits of Section 10.01 of the Base Indenture. The following Section 5.01 replaces Section 10.01 of the Base Indenture in its entirety with respect to the Notes. The Company shall not, directly not merge or indirectly: (1) consolidate with any other Person or merge with or into another Person Persons (whether or not affiliated with the Company is the surviving corporationCompany) or (2) sell, assignconvey, transfer, convey lease or otherwise dispose of all or substantially all of the properties its property or assets of to any other Person or Persons (whether or not affiliated with the Company and its Restricted Subsidiaries taken as a wholeCompany), in one or more related transactions, to another Person; unless:
(1i) either:
: (A) the transaction is a merger or consolidation and the Company is the surviving corporationentity; or
or (B) the successor Person formed (or the Person which acquires by sale, conveyance, transfer or surviving any such consolidation lease all or merger (if other than substantially all of the Company's property or assets) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia and expressly assumes, if required by law to effectuate the assumption, by a supplemental indenture, all of the Company's obligations under the Notes and the Indenture;
(ii) immediately after giving effect to the transaction and treating the Company's obligations in connection with or as a result of such transaction as having been incurred as of the time of such transaction, no Event of Default (and no event or condition which, after notice or lapse of time or both, would become an Event of Default) shall have occurred and be continuing under the Indenture; and
(iii) an Officer's Certificate is delivered to the Trustee to the effect that does not both of the conditions set forth in clauses (i) and (ii) above have been satisfied and an Opinion of Counsel has been delivered to the Trustee to the effect that condition (i) set forth above has been satisfied and/or that any conditions precedent in connection with this Second Supplemental Indenture have been satisfied in accordance with the terms of the Base Indenture. In the event of any of the above transactions, if there is a successor person as described in paragraph (i)(B) immediately above, then the successor will not have any material assets or operations becomes a co-expressly assume and be bound by all of the Company's obligations and duties under the Indenture and automatically be substituted for the Company in the Indenture and as issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations and may exercise every right and power of the Company under the NotesIndenture with the same effect as if such successor person had been named in the Company's place in the Indenture. Further, this if the transaction is in the form of a sale or conveyance, after any such transfer (except in the case of a lease), the Company will be discharged from all obligations and covenants under the Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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)all Notes issued thereunder.
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Second Supplemental Indenture (Maxim Integrated Products Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to another Person; unless:
(1i) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or 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; provided that if the Person is a partnership or limited liability company, 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 shall not have any material assets or operations becomes shall promptly thereafter become a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoindenture;
(2ii) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture executed and delivered to the Trustee in form reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
(4iv) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldshall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a).
(b) The 4.09. In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger . For purposes of this Section, the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, disposition or lease of all or other disposition substantially all of the properties and assets between of one or among more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Notwithstanding the preceding clause (iv), any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and the Recapitalization may be consummated. A Guarantor may not sell or otherwise dispose of all or substantially all of its Wholly-Owned Restricted Subsidiaries assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to that are Domestic Subsidiaries transaction, no Default or Event of Default exists; and
(ii) either:
(a) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Guarantor under this Indenture, its Subsidiary Guarantee and Guarantorsthe Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee; or
(3b) any consolidation such sale or merger between or among the Company other disposition complies with Section 4.10 and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSection 4.16.
Appears in 1 contract
Sources: Indenture (Cinemark Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall Casella may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Casella is the surviving corporation) ); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the ▇▇▇▇▇▇▇’▇ properties or assets of the Company (determined on a consolidated basis for Casella and its Restricted Subsidiaries taken as a wholeSubsidiaries), in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company Casella is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCasella) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made (the “Surviving Person”) is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States State thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Casella under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default exists (including, without limitation, after giving effect to any Indebtedness or Event Liens incurred, assumed or granted in connection with or in respect of Default existssuch transaction); and
(4) immediately after such transaction Casella or the CompanySurviving Person will be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception. The foregoing clauses (3) and (4) shall not apply to (a) a merger or consolidation of any Restricted Subsidiary with or into Casella or (b) a transaction solely for the purpose of and with the effect of reincorporating Casella in another jurisdiction and/or forming a holding company to hold all of the Capital Stock of Casella or forming an intermediate holding company to hold all of the Capital Stock of ▇▇▇▇▇▇▇’▇ Subsidiaries. In the event of any transaction described in and complying with the conditions listed in the preceding paragraph in which Casella 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, Casella and Casella will be discharged from all obligations and covenants under this Indenture and the Notes.
(b) No Guarantor may, and Casella will not cause or permit any Guarantor to, consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person unless:
(1) immediately after such transaction, no Default exists (including, without limitation, after giving effect to any Indebtedness or Liens incurred, assumed or granted in connection with or in respect of such transaction); and
(2) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date obligations of such transaction after giving pro forma effect thereto Guarantor under its Subsidiary Guarantee, this Indenture and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
Trustee. The requirements of this clause (b) The Company shall not, directly not apply to (x) a consolidation or indirectly, lease all merger of any Guarantor with or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one into Casella or more related transactions, to any other PersonGuarantor so long as Casella or a Guarantor survives such consolidation or merger or (y) the sale by consolidation or merger of a Guarantor, which sale is covered by and complies with Section 4.13.
(c) This Section 5.01 shall not apply to:
(1) a merger Casella will deliver to the Trustee prior to the consummation of each proposed transaction an Officer’s Certificate certifying that the Company conditions set forth above are satisfied and an Opinion of Counsel, which opinion may contain customary exceptions and qualifications, that the proposed transaction and this supplemental indenture, if any, comply with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsthis Indenture.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company Neither the Parent nor the Borrower (whichever is applicable, the “Subject Company”) shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the such surviving Subject Company is the surviving corporation) or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(A) either:
(1) either:
(A) the Subject Company is the surviving corporation; or
(B2) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such entity is not a corporation, a co-obligor of the Person Loans is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretosuch laws;
(2B) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Subject Company under the Notes, this Indenture and Loan Documents by operation of law (if the Registration Rights Agreement surviving Person is the Borrower) or pursuant to agreements reasonably satisfactory to the TrusteeAdministrative Agent;
(3C) immediately after such transaction, no Default or Event of Default exists; and
(4D) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, be permitted to incur at least $1.00 of additional Indebtedness pursuant Subject Company shall have delivered to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The Administrative Agent an Officer’s Certificate stating that such consolidation, merger or transfer complies with this Agreement. In addition, a Subject Company shall will not, directly or indirectly, lease all or substantially all of its the properties and assets of it such Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 shall 6.10(a) will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company Parent and/or its Subsidiaries. Clauses (C) and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or(D) of Section 6.10(a) will not apply to the Airline/Parent Merger.
(3c) Upon any consolidation or merger between merger, or among any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of any Subject Company in a transaction that is subject to, and any that complies with the provisions of, Section 6.10(a), the successor Person formed by such consolidation or into or with which such Subject Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of its Wholly-Owned Restricted Subsidiaries such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement referring to such Subject Company shall refer instead to the successor Person and not to such Subject Company), and may exercise every right and power of such Subject Company under this Agreement with the same effect as if such successor Person had been named as such Subject Company herein; provided, however, that are Domestic Subsidiaries the predecessor Subject Company, if applicable, shall not be relieved from the obligation to pay the principal of, and Guarantorsinterest, if any, on the Loan except in the case of a sale of all of such Subject Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.10(a) hereof.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Hawaiian Holdings Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) except in the Companycase of a merger entered into solely for the purpose of reincorporating the Company or any Restricted Subsidiary in another jurisdiction, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a).
(b) The 4.09 hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orany Guarantor.
(3b) On and after the date that the Registered Exchange Offer to exchange the Notes for notes that have been registered with the SEC has been consummated, the Company will be permitted to effect a reorganization whereby the Common Stock of the Company shall become owned by a corporation organized or existing under the laws of the United States, any consolidation state thereof or merger between the District of Columbia ("Holdco"); provided that immediately after such transaction no Default or among Event of Default exists and, provided further that:
(1) if the obligations of the Company under the Notes and the Indenture remain those of the Company, then (A) Holdco shall, within 10 Business Days of the date on which Holdco becomes the owner of the Common Stock of the Company, execute a supplemental indenture or other instrument evidencing its Guarantee of the Company's obligations under the Notes and this Indenture, in either case in form satisfactory to the Trustee, and deliver an Opinion of Counsel to the Trustee, (B) Holdco, the Company and any each of its Wholly-Owned Holdco's Restricted Subsidiaries that shall be subject to all of the covenants under Article 4 hereof, and (C) all of the Subsidiaries of Holdco shall be Restricted Subsidiaries, except for its Unrestricted Subsidiaries, and all of the existing and future Domestic Restricted Subsidiaries of Holdco, except for the Company, Custom and Sanford, shall be Guarantors in accordance with, and to the extent re▇▇▇▇▇▇ by, Section 4.17 hereof.
(2) if the obligations of the Company under the Notes and the Indenture are transferred and assigned to Holdco, then (A) Holdco shall assume all the obligations and covenants of the Company under the Notes and this Indenture, pursuant to agreements reasonably satisfactory to the Trustee, (B) each of Holdco and its Restricted Subsidiaries, including the Company, shall be subject to all of the covenants under Article 4 hereof, (C) the Company shall, within 10 Business Days of the date on which Holdco assumes the obligations of the Company under the Notes and this Indenture, execute a supplemental indenture or other instrument evidencing its Guarantee of Holdco's obligations under the Notes and this Indenture, in either case in form satisfactory to the Trustee, and deliver an Opinion of Counsel to the Trustee, and (D) all of the Subsidiaries of Holdco shall be Restricted Subsidiaries, except for its Unrestricted Subsidiaries, and all of the existing and future Domestic Restricted Subsidiaries of Holdco, except for Custom and GuarantorsSanford, shall be Guarantors in accordance with, and to the extent re▇▇▇▇▇▇ by, Section 4.17 hereof.
Appears in 1 contract
Sources: Indenture (Scotts Company)
Merger, Consolidation or Sale of Assets. (a) The Company shall notmay not and will not permit Worldspan to, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company or Worldspan is the surviving corporation) entity); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Company, Worldspan and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company or Worldspan, as the case may be, is the surviving corporationentity; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or Worldspan) or to which such sale, assignment, transfer, conveyance or other disposition has been made made, as the case may be, 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia (provided that does if the person formed by or surviving any such consolidation or merger with the Company or Worldspan is not and will not have any material assets or operations becomes a corporation, a corporate co-issuer of shall also be an obligor with respect to the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoNotes);
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or Worldspan) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made made, as the case may be, assumes all the obligations of the Company under the Notes, this Indenture Notes and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the TrusteeMajority Holders;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) (A) Worldspan or, if Worldspan is a party to the Companyapplicable consolidation or merger, or the Person formed by or surviving any such consolidation or merger (if other than the CompanyWorldspan), or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade, as the case may be: will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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 4.09(a).
5(c) or (bB) The Company shall not, directly the Fixed Charge Coverage Ratio on the date of such transaction after giving pro forma effect thereto would be equal to or indirectly, lease all or substantially all of its properties and assets of it greater than the same ratio for Worldspan and its Restricted Subsidiaries taken as a whole, in one or more related transactions, immediately prior to any other Person.
(c) the transaction. This Section 5.01 shall 5(h) will not apply to:
to (1A) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company Company, Worldspan and any of its Wholly-Owned Restricted Subsidiaries that are Domestic or (B) any merger or consolidation of (1) the Company with and into Worldspan or one of its Restricted Subsidiaries or Worldspan with and Guarantorsinto the Company or one of its Restricted Subsidiaries or (2) the Company or Worldspan with and into an Affiliate of the Company for the purpose of incorporating or reincorporating or organizing or reorganizing the Company or Worldspan in the same or another jurisdiction in the United States or any state thereof or the District of Columbia.
Appears in 1 contract
Sources: Credit Agreement (Ws Financing Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall PES will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company PES is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company PES and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company PES is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyPES) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyPES) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company PES under the Notes, this Indenture and Indenture, the Registration Rights Agreement and the Security Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) the Company, or Trustee has received an Opinion of Counsel and Officers’ Certificate to the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of effect that such transaction after giving pro forma effect thereto and any related financing transactions as if complies with the same had occurred at the beginning of the applicable four-quarter periodforegoing. In addition, 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).
(b) The Company shall PES will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company PES with an Affiliate solely for the purpose of reincorporating the Company PES in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company PES and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) such transaction would not result in the loss or suspension or material impairment of any of the Company’s or any of its Restricted Subsidiaries’ Gaming Licenses, unless a comparable replacement Gaming License is effective prior to or simultaneously with such loss, suspension or material impairment;
(5) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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).
) or (b) The hereof have a Fixed Charge Coverage Ratio that is no less than the Fixed Charge Coverage Ratio of the Company shall immediately prior to such transaction; and
(6) such transaction would not require any Holder or Beneficial Owner of Notes 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. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among Subsidiaries. Notwithstanding the foregoing, the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsmay reorganize pursuant to a Permitted C-Corp. Reorganization.
Appears in 1 contract
Sources: Indenture (Herbst Gaming Inc)
Merger, Consolidation or Sale of Assets. (a) The Company Neither Parent nor the Borrower (whichever is applicable, the “Subject Company”) shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the such Subject Company is the surviving corporation) or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Subject Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such entity is not a corporation, a co-obligor of the Person Loans is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretosuch laws;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the Table of Contents obligations of the Subject Company under the Notes, this Indenture and Loan Documents by operation of law (if the Registration Rights Agreement surviving Person is the Borrower) or pursuant to agreements reasonably satisfactory to the TrusteeAdministrative Agent;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, be permitted to incur at least $1.00 of additional Indebtedness pursuant Subject Company shall have delivered to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The Administrative Agent an Officer’s Certificate stating that such consolidation, merger or transfer complies with this Agreement. In addition, a Subject Company shall will not, directly or indirectly, lease all or substantially all of its the properties and assets of it such Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 shall 6.10(a) will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Parent and/or its Restricted Subsidiaries. Clauses (3) and (4) of Section 6.10(a) will not apply to the Company Airlines Merger, the Airline/Parent Merger or any merger, consolidation or transfer of assets:
(1) between or among Parent and its Wholly-Owned any of Parent’s Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries;
(2) between or among any of Parent’s Restricted Subsidiaries; or
(3) with or into an Affiliate solely for the purpose of reincorporating a Subject Company in another jurisdiction.
(c) Upon any consolidation or merger between merger, or among any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of any Subject Company in a transaction that is subject to, and any that complies with the provisions of, Section 6.10(a), the successor Person formed by such consolidation or into or with which such Subject Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of its Wholly-Owned Restricted Subsidiaries such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement referring to such Subject Company shall refer instead to the successor Person and not to such Subject Company), and may exercise every right and power of such Subject Company under this Agreement with the same effect as if such successor Person had been named as such Subject Company herein; provided, however, that are Domestic Subsidiaries the predecessor Subject Company, if applicable, shall not be relieved from the obligation to pay the principal of, and Guarantorsinterest, if any, on the Loan except in the case of a sale of all of such Subject Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.10(a) hereof.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) Person; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of Canada, any province thereof, the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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 has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Collateral Agreements, as applicable, pursuant to agreements reasonably satisfactory to the TrusteeTrustee and the Collateral Agent, as applicable;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) except with respect to a transaction solely between the CompanyParent, the Company and/or any Subsidiary Guarantor, either (a) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
; or (b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger the Fixed Charge Coverage Ratio of the Company with an Affiliate solely for or the purpose of reincorporating surviving or transferee entity, as applicable, after giving pro forma effect to such transaction, is greater than or equal to the Company’s Fixed Charge Coverage Ratio immediately prior to such transaction; and
(5) the Company in another jurisdiction;
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and such supplemental indenture (2if any) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorscomply with this Indenture.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose Dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition Disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition Disposition has been made assumes all the obligations Obligations of the Company under the NotesSecurity Documents, the Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition Disposition has been made wouldmade, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Bank Consolidated First Lien Leverage Ratio, Bank Consolidated Leverage Ratio and Bank Consolidated Interest Coverage Ratio test tests set forth in Section 4.09(a).) hereof; and
(b5) The all rights afforded to the Company shall or the Parent Entity by the Environmental Indemnity Agreements are effectively assigned, in full, to the Person formed by or surviving any such consolidation or merger (if other than the Company or the Parent Entity) or the Person to which such sale, assignment, transfer, conveyance or other Disposition has been made pursuant to agreements reasonably satisfactory to the Trustee. In addition, the Company may not, directly or indirectly, lease all or substantially all of its the properties and assets of it the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person, and the Parent Entity will not consolidate or merge with any entity other than another Parent Entity and will not permit any merger by any future Parent Entity unless and until the conditions set forth in clauses (1) through (5) above have been satisfied.
(c) This Section 5.01 shall will not apply to:
(1A) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2B) any consolidation or merger or any sale, assignment, transfer, conveyance, lease or other disposition Disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall Parent Borrower will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Parent Borrower is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Parent Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless, subject to Section 9.22:
(1i) either:
either (A) the Company Parent Borrower is the surviving corporation; or
corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent 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; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent Borrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Parent Borrower under the Notes, this Indenture and the Registration Rights Agreement Loan Documents pursuant to joinder agreements or other documents and agreements reasonably satisfactory to the TrusteeAdministrative Agent;
(3iii) immediately after such transaction, no Default or Event of Default exists; and
(4iv) (A) the Company, Parent Borrower or the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, 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 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 provisions of Section 4.09(a)6.01(a) or (B) the Fixed Charge Coverage Ratio of the Parent Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Parent Borrower) is greater after giving pro forma 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 than the Parent Borrower’s actual Fixed Charge Coverage Ratio for the period.
(b) The Company In addition, the Parent Borrower shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This Section 5.01 6.08 shall not apply to:
to (1i) a merger of the Company Parent Borrower with an Affiliate solely for the purpose of reincorporating the Company Parent Borrower in another jurisdiction;
jurisdiction or forming a direct holding company of the Parent Borrower; and (2ii) any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company Parent Borrower and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orSubsidiaries, including by way of merger or consolidation.
(3d) Upon any consolidation or merger between merger, or among any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company assets of the Parent Borrower and any of its Wholly-Owned Restricted Subsidiaries taken as a whole in a transaction that are Domestic Subsidiaries is subject to, and Guarantorsthat complies with the provisions of, Sections 6.08(a) through and including 6.08(d), the successor corporation formed by such consolidation or into or with which the Parent Borrower is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Agreement and the other Loan Documents referring to the “Parent Borrower” shall refer instead to the successor corporation and not to the Parent Borrower), and may exercise every right and power of the Parent Borrower under this Agreement and the other Loan Documents with the same effect as if such successor Person had been named as the Parent Borrower herein; provided, however, that the predecessor Parent Borrower shall not be relieved from its payment obligations hereunder except in the case of a sale of all of the Parent Borrower’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.08(a) through and including 6.08(d).
(e) A Borrower (other than the Parent Borrower) will not, directly or indirectly, consolidate or merge with or into another Person (other than the Parent Borrower), unless either (A) such Borrower is the surviving Person or (B) the Person formed by or surviving any such consolidation or merger is a Loan Party.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) Person); or (2ii) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporationPerson; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other agreements;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame had occurred at the beginning of the applicable Reference Period, either (A) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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) hereof or (B) the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and
(5) the Company 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries. Section 5.01(a)(3) and Guarantors; or
(3a)(4) will not apply to any merger or consolidation or merger between or among of the Company and with or into, or any sale, assignment, transfer, conveyance, lease or other disposition of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsall or substantially all of the Company’s properties or assets to, an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction.
Appears in 1 contract
Sources: Indenture (Rattler Midstream Lp)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made made
is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the NotesNotes and this Indenture, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture or other agreements reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, transaction no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldshall, 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, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant under the Consolidated Coverage Ratio Test or (ii) (A) would have a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio of the Company immediately prior to such transaction and without taking into account such transaction and any related financing transactions and (B) has received and delivered to the Fixed Charge Coverage Ratio test set forth in Section 4.09(aTrustee letters from ▇▇▇▇▇'▇ and S&P stating that the High Yield Notes (if any are outstanding at that time), after giving effect to such transaction and any related financing transactions, will be rated at least "Ba1" and "BB" by such agencies, respectively; and
(5) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture.
(b) The In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall 5.1 will not apply to:
prohibit (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2i) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any Restricted Subsidiary, (ii) any Restricted Subsidiary from consolidating with, merging into or transferring all or part of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orassets to the Company, or (iii) the Company from merging with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
(3c) In the event of any consolidation or merger between or among transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraph in which the Company is not the surviving Person and any the surviving Person is to assume all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, such surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company, and the Company would be discharged from its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries obligations under this Indenture and Guarantorsthe Notes.
Appears in 1 contract
Sources: Indenture (Danielson Holding Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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).
(b) The hereof. In addition, the Company shall will not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) merge, amalgamate or consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporation; or
or (B) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of Canada, any province or territory of Canada, the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Collateral Agreements pursuant to agreements reasonably satisfactory to the TrusteeTrustees or the Collateral Agent, as applicable, or is liable for those obligations by operation of law;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company), 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, (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(a4.08(a); or (ii) have had a Fixed Charge Coverage Ratio not less than the actual Fixed Charge Coverage Ratio for the Company pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a).
(b) The In addition, the Company shall not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and any one or more of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among any one or more of the Company Company’s Restricted Subsidiaries.
(d) Section 5.01(a)(3) and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.Section 5.01(a)
Appears in 1 contract
Sources: Indenture (Taseko Mines LTD)
Merger, Consolidation or Sale of Assets. (a) The Company None of Borrower or any of its Subsidiaries (whichever is applicable, the “Subject Company”) shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the such Subject Company is the surviving corporationPerson) or (2ii) sell, assign, transfer, convey or otherwise dispose Dispose of all or substantially all of the properties or assets of the Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unlessprovided that:
(i) This Section 6.09(a) shall not restrict the foregoing actions by Borrower if:
(1) either:
(A) the Company Borrower is the surviving corporationPerson; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, conveyance or other disposition Disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United Statesa Specified Jurisdiction; and, any state if such entity is not a corporation, a co-obligor of the United States or the District of Columbia; provided that if the Person Loans is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretosuch laws;
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition Disposition has been made assumes all the obligations of the Subject Company under the Notes, this Indenture and Loan Documents by operation of law (if the Registration Rights Agreement surviving Person is Borrower) or pursuant to Section 5.12 or otherwise pursuant to agreements reasonably satisfactory to the TrusteeAdministrative Agent;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) with respect to any merger or consolidation by Borrower with any other Loan Party or any Disposition by Borrower, after giving effect thereto, the interests of the Lenders in respect of the Collateral are not adversely affected; and
(45) the CompanySubject Company shall have delivered to the Administrative Agent an Officer’s Certificate stating that such consolidation, merger or Disposition complies with this Agreement;
(ii) any Subsidiary of Borrower that is not a Loan Party may consolidate or merge with or into a Loan Party or Dispose of all or substantially all of its properties to a Loan Party so long as, with respect to any consolidation or merger either (A) the Loan Party is the surviving Person or (B) (1) the Person formed or surviving any such consolidation (if other than such Loan Party) is an entity organized or existing under the laws of a Specified Jurisdiction and (2) the Person formed by or surviving any such consolidation or merger assumes all the obligations of such Loan Party under the Loan Documents by operation of law or pursuant to Section 5.12 or otherwise pursuant to agreements reasonably satisfactory to the Administrative Agent;
(if iii) any Loan Party (other than Borrower) may consolidate or merge with or into any other Loan Party or Dispose of all or substantially all of its properties to another Loan Party so long as (x) after giving effect thereto, the Companyinterests of the Lenders in respect of the Collateral are not adversely affected and (y) in the case of any Disposition, the transferee is a Loan Party and the transferee is either (1) in the same jurisdiction as the transferor, (2) a Specified Jurisdiction or (3) another jurisdiction reasonably satisfactory to the Administrative Agent;
(iv) any Subsidiary that is not a Loan Party may consolidate or merge with or into any other Subsidiary that is not a Loan Party or Dispose of all or substantially all of its properties to a Subsidiary that is not a Loan Party; provided that (x) with respect to any consolidation or merger between a Subsidiary whose Equity Interests constitute Collateral and a Subsidiary whose Equity Interests do not constitute Collateral, the Subsidiary whose Equity Interests constitute Collateral shall be the surviving Person and (y) no Subsidiary whose Equity Interests constitute Collateral may Dispose of all or substantially all of its properties to a Subsidiary whose Equity Interests do not constitute Collateral, unless, in each case, under (x) and (y), (1) such Equity Interests of the applicable Subsidiary (the “Subject Entity”) that do not constitute Collateral as of the date of such consolidation or merger are promptly pledged as Collateral on or following the consummation of such consolidation or merger and (2) the Subject Entity is organized in a Security Jurisdiction or a different jurisdiction reasonably satisfactory to the Lead Lenders;
(v) any Permitted Investment may be structured as a merger or consolidation (provided that (x) if the Borrower is a party to such merger or consolidation, the Borrower shall be the surviving Person thereof, (y) if a Loan Party is a party to such merger or consolidation, such Loan Party shall be the surviving Person thereof and (z) if a Subsidiary that is not a Loan Party is a party to such merger or consolidation, such Subsidiary shall be the surviving Person thereof);
(vi) any merger, consolidation, dissolution or liquidation, in each case, not involving the Borrower may be effected for the purposes of effecting a Disposition permitted by this Agreement; and
(vii) the dissolution of any Subsidiary (that is not a Loan Party) with no or de minimis assets is permitted.
(b) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of any Subject Company in a transaction that is subject to, and that complies with the provisions of, Section 6.09(a)(i) or (ii), the successor Person formed by such consolidation or into or with which such Subject Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition has been is made wouldshall succeed to, on and be substituted for (so that from and after 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 periodconsolidation, 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).
(b) The Company shall notmerger, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyancelease, lease conveyance or other disposition disposition, the provisions of this Agreement and the other Loan Documents referring to such Subject Company shall refer instead to the successor Person and not to such Subject Company), and may exercise every right and power of such Subject Company under this Agreement and the other Loan Documents with the same effect as if such successor Person had been named as such Subject Company herein and therein; provided, however, that the predecessor Subject Company (in the case of Borrower), if applicable, shall not be relieved from the obligation to pay the principal of, and interest, if any, on the Loan except in the case of a sale of all of such Subject Company’s assets between or among in a transaction that is subject to, and that complies with the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3provisions of, Section 6.09(a)(i) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorshereof.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Com- pany and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any of the Guarantors. Notwithstanding anything in this Indenture, a Restricted Subsidiary may consolidate with, merge into or convey, lease, sell, assign, transfer or otherwise dispose of all or part of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries properties and Guarantors; or
(3) any consolidation or merger between or among assets to the Company or a Restricted Subsidiary; and any the Company may merge with an Affiliate incorporated solely for the purpose of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsreincorporating the Company in another jurisdiction in the United States to realize tax or other benefits.
Appears in 1 contract
Sources: Indenture (Metaldyne Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) , consolidate or merge with or into another Person (whether or not the Company is the surviving corporationSurviving Corporation) or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; person, unless:
(1) either:
(A) the Company is the surviving corporation; person or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United StatesStates of America, any state of the United States State thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes assumes, by supplemental indenture in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the TrusteeIndenture;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and;
(4) except with respect to a consolidation or merger of the CompanyCompany with or into a Restricted Subsidiary, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, 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 a Fixed Charge Coverage Ratio that is no worse than the Fixed Charge Coverage Ratio of the Company for such applicable four-quarter period without giving pro forma effect to such transactions and the related financing transactions; and
(5) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance satisfactory to the Trustee, in its reasonable judgment, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied.
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyancelease, lease conveyance or other disposition of all or substantially all of the properties or assets between of one or among more Subsidiaries of the Company, which properties or assets, if held by the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation instead of such Subsidiaries, would constitute all or merger between substantially all of the properties or among assets of the Company and any on a consolidated basis, shall be deemed to be the transfer of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsall or substantially all of the properties or assets of the Company.
Appears in 1 contract
Sources: Indenture (Centene Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The hereof. In addition, the Company shall will not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any merger or consolidation, or any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsIDT Merger.
Appears in 1 contract
Sources: Indenture (DRS Technologies Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall Issuer may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Issuer is the surviving corporation) survivor), or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company Issuer is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company Issuer under the Notes, this Indenture and the Registration Rights Agreement Security Documents pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other documents or instruments;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transactions on a pro forma basis as if the Companysame 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 CompanyIssuer), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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) hereof; 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cSection 5.01(a) This Section 5.01 shall hereof will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company Issuer and its Wholly-Owned Restricted Subsidiaries. Section 5.01(a)(3) and (a)(4) hereof will not apply to any merger or consolidation of the Issuer (1) with or into one of its Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orfor any purpose or (2) with or into an Affiliate solely for the purpose of organizing the Issuer under the laws of another jurisdiction.
(3c) any consolidation For purposes of this Section 5.01, the transfer (by lease, assignment, sale or merger between otherwise, in a single transaction or among series of transactions) of all or substantially all of the Company and any properties or assets of its Wholly-Owned one or more Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsof the Issuer, 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.
Appears in 1 contract
Sources: Indenture (SunCoke Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; Person unless:
(1i) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition 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; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of (such other Person being herein called the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto“Successor Person”);
(2ii) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Security Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, no Default or Event of Default exists; and;
(4iv) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made (a) would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a).
4.09 or (b) The would have a lower Leverage Ratio immediately after the transaction, after giving pro forma effect to the transaction as if the transaction had occurred at the beginning of the applicable four quarter period, than the Company’s Leverage Ratio immediately prior to the transaction; and
(v) if the Successor Person is not a corporation, a Restricted Subsidiary of the Successor Person that is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, shall be a co-obligor of the Notes pursuant to a supplemental indenture in a form reasonably acceptable to the Trustee. In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
prohibit (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2i) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries, (ii) any Restricted Subsidiary from consolidating with, merging into or transferring all or part of its assets to the Company or any Restricted Subsidiary or (iii) the Company from merging with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
Appears in 1 contract
Sources: Indenture (Lbi Media Holdings Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) except in the Companycase of the Merger, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any of the Guarantors (including Newco on the Acquisition Date). Notwithstanding anything in this Indenture, a Restricted Subsidiary may consolidate with, merge into or convey, lease, sell, assign, transfer or otherwise dispose of all or part of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries properties and Guarantors; or
(3) any consolidation or merger between or among assets to the Company or a Restricted Subsidiary; and any the Company may merge with an Affiliate incorporated solely for the purpose of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsreincorporating the Company in another jurisdiction in the United States to realize tax or other benefits.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(Aa) the Company is the surviving corporation; or
(Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership Person or limited liability company entity organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade:
(a) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Leverage Ratio test set forth in Section 4.09(a).) hereof; or
(b) The the Leverage Ratio test set forth in Section 4.09(a) hereof 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) would not be higher than the Leverage Ratio of the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, immediately prior to any other Person.the transaction; and
(c5) the Company shall have delivered to the Trustee an Officers’ Certificate stating that all conditions precedent to such merger, consolidation or sale provided in this Section have been satisfied. This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any of its Wholly-Wholly Owned Restricted Subsidiaries. Notwithstanding the foregoing, the Company may merge with an Affiliate incorporated for the purpose of reincorporating the Company in another jurisdiction and/or for the purpose of forming a holding company. In addition, for avoidance of doubt, it is understood that under no circumstances shall a sale, assignment, transfer, conveyance or other disposition, in one or a series of related transactions, of assets of the Company and its Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among represent less than 50% of the Consolidated EBITDA of the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsfor the Reference Period immediately preceding such transaction or transactions be subject to this Section 5.01.
Appears in 1 contract
Sources: Indenture (Emmis Operating Co)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1a) either:
: (Ai) the Company is the surviving corporation; or
or (Bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2b) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture Notes and the Registration Rights Agreement Indenture pursuant to agreements a supplemental indenture in form reasonably satisfactory to the Trustee;
(3c) immediately after 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
(4d) except in the Companycase of a transaction entered into to reincorporate the Company in another jurisdiction, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) 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 4.09(a).
4.07 hereof or (bii) The have a Fixed Charge Coverage Ratio that is no worse than the Fixed Charge Coverage Ratio of the Company shall for such applicable four-quarter period without giving pro forma effect to such transactions and the related financing transactions. In addition, the Company may not, directly or indirectly, lease all or substantially all of its the properties and or assets of it the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and the Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: indirectly (1a) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2b) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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).
(b) The hereof. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) survivor); or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporationsurvivor; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, States or any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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 has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Security Documents pursuant to agreements a supplement to this Indenture or other agreement expressly assuming such obligations in form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, no Default or Event of Default exists; and;
(4) either:
(a) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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) 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 (if 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
(5) the Company 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cSection 5.01(a) This Section 5.01 shall hereof will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of Capital Stock, properties or assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries. Notwithstanding the restrictions set forth in Section 5.01(a)(4) hereof, any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties and Guarantors; or
(3) any consolidation or merger between or among assets to the Company or any Restricted Subsidiary and the Company may merge with an Affiliate of the Company solely for the purpose of reorganizing the Company in a state of the United States or the District of Columbia or for the sole purpose of forming or collapsing a holding company structure, in each case, without complying with Section 5.01(a)(4) hereof in connection with any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorssuch consolidation, merger or disposition.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) , consolidate or merge with or into another Person or wind up into (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company’s properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; any Person unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made is a corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state jurisdiction of organization of the United States Company or the District of Columbia; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person organized or existing under the laws of the United States, any state of the United States or thereof, the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that does in the case where the Successor Company is not and will not have any material assets or operations becomes a corporation, a co-issuer obligor of the Notes pursuant to is a supplemental indenture substantially in the form of Exhibit E attached heretocorporation;
(2) the Person formed by or surviving any such consolidation or merger (Successor Company, if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made expressly assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Notes, pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other documents or instruments;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction immediately after giving pro forma effect thereto to such transaction and any related financing transactions transactions, as if the same such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Company or the Successor Company, as applicable, 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 for the Company (or, if applicable, the Successor Company) and its Restricted Subsidiaries would be equal to or greater than such Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless (i) it is the other party to the transactions described above, in which case Section 5.01(b)(1)(B) shall apply or (ii) the Company is the surviving entity, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Company (or, if applicable, the Successor Company) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, complies with this Indenture. Provided, that for the avoidance of doubt, neither the Arysta Unrestricted Designation nor the sale by the Company or its Restricted Subsidiaries of equity or assets in the Arysta Business shall constitute a sale of all or substantially all of the Company’s properties or assets. The Successor Company will succeed to, and be substituted for the Company, as the case may be, under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the foregoing clauses (3) and (4) of Section 5.01(a),
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor, and
(2) the Company may merge with an Affiliate of the Company, as the case may be, solely for the purpose of reincorporating the Company in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) The No Subsidiary Guarantor will, and the Company shall notwill not permit any Subsidiary Guarantor to, directly consolidate or indirectlymerge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), lease or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply toPerson unless:
(1) a (A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2if other than such Guarantor) any or to which such sale, assignment, transfer, conveyancelease, lease conveyance or other disposition will have been made is a corporation, partnership, trust or limited liability company organized or existing under the laws of assets between the jurisdiction of organization of such Guarantor, as the case may be, or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
laws of the United States, any state thereof, the District of Columbia or any territory thereof (3) any consolidation such Guarantor or merger between or among such Person, as the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.case may be, being herein called the “Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: indirectly (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person; unless:
, unless (1i) either:
either (A) the Company is the surviving corporation; or
corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia that does not and will not have (any material assets or operations becomes a co-issuer of such Person, the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
"SUCCESSOR COMPANY"), (2ii) 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, conveyance or other disposition has been made Successor Company assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
, (3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
, and (4iv) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldSuccessor Company shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a4.09 hereof. The foregoing clause (iv) shall not prohibit (A) a merger between the Company and any of its Restricted Subsidiaries; or (B) a merger between the Company and an Affiliate with no liabilities (other than DE MINIMIS liabilities).
(b) The , PROVIDED that such Affiliate is incorporated and the merger undertaken solely for the purpose of reincorporating the Company in another state of the United States, so long as, the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This . The provisions of this Section 5.01 shall not apply to:
(1) be applicable to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and the Guarantors.
Appears in 1 contract
Sources: Indenture (Crown Battleground LLC)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement other Note Documents and pursuant to agreements in form reasonably satisfactory to the Trustee;; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by agreements in form reasonably satisfactory to the Trustee.
(3) immediately after such transactiontransaction or transactions, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made 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) The have a Fixed Charge Coverage Ratio not less than the Fixed Charge Coverage Ratio of the Company shall notimmediately prior to such transaction; and
(5) any Collateral owned by or transferred to the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, directly assignment, transfer, conveyance or indirectlyother disposition has been made continues to constitute Collateral under the Note Documents, lease subject to the Third Liens, except as permitted by this Indenture or the other Note Documents. For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Notwithstanding the restrictions described in clause (4) of this Section 5.01, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets of it and its Restricted Subsidiaries taken as a wholeto the Company, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its Wholly-Owned properties and assets to another Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiary.
Appears in 1 contract
Sources: Indenture (W&t Offshore Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) Person); or (2ii) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporationPerson; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other agreements;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame had occurred at the beginning of the applicable Reference Period, either (A) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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) hereof or (B) the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and
(5) the Company 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries. Section 5.01(a)(3) and Guarantors(a)(4) will not apply to any merger or consolidation of the Company with or into, or any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the Company’s properties or assets to, (i) a Restricted Subsidiary of the Company for any purpose or (ii) an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction. Notwithstanding the foregoing, the Company will be permitted to reorganize as any other form of entity; orprovided that:
(1) 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 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;
(3) any consolidation the entity so formed by or merger between or among resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee;
(4) immediately after such reorganization no Default or Event of Default exists; and
(5) such reorganization is not adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered adverse to the Holders or Beneficial Owners of the 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) of the Code or any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorssimilar state or local law).
Appears in 1 contract
Sources: Indenture (Oasis Petroleum Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1a) either:
: (Ai) the Company is the surviving corporation; or
or (Bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2b) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3c) immediately after 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
(4d) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade:
(i) shall, on a pro forma basis giving effect to such transaction or series of transactions, 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
(ii) shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a).
(b) The 4.09. In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its the properties and or assets of it the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and the Guarantors.
Appears in 1 contract
Sources: Indenture (Omnicare Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2ii) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (A) the Company is the surviving corporationPerson; or
or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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 has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture or other agreements;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame had occurred at the beginning of the applicable four-quarter period, either (A) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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) hereof or (B) the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and
(5) the Company 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries. Section 5.01(a)(3) and Guarantors; or
(3a)(4) will not apply to any merger or consolidation or merger between or among of the Company and with or into, or any sale, assignment, transfer, conveyance, lease or other disposition of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsall or substantially all of the Company’s properties or assets to, an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction.
Appears in 1 contract
Sources: Indenture (Viper Energy Partners LP)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia that does and, if such entity is not and will not have any material assets or operations becomes a corporation, a co-issuer obligor of the Notes pursuant to is a supplemental indenture substantially in the form of Exhibit E attached heretocorporation organized or existing under any such laws;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations Obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to a supplemental indenture substantially in the Trusteeform of Exhibit F hereto;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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; and
(b5) The other than with respect to mergers or consolidations of a Guarantor into another Guarantor or the Company, the Company shall notdeliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, directly or indirectlyeach stating that such consolidation, merger, sale, assignment, transfer, conveyance, lease or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, conditions precedent herein provided for relating to any other Person.
(c) such transaction have been complied with. This Section 5.01 shall will not apply to:
to (1i) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
Merger or (2ii) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned any wholly owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiary of the Company. Clauses (3), (4) and (5) of this Section 5.01 will not apply to (a) any merger or consolidation of any Restricted Subsidiary with or into the Company or (b) a merger between or among consolidation of the Company with or into an Affiliate for the purpose of reincorporating the Company in another jurisdiction so long as the amount of Indebtedness of the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsis not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporationsurvivor) or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture;
(3) immediately after such transaction, no Note Payment Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame had occurred at the beginning of the applicable four-quarter period, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Consolidated Leverage Ratio test set forth in Section 4.09(a); and
(5) the Company 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, do not violate this Indenture.
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
to (1) a merger any statutory conversion of the Company with an Affiliate solely for the purpose to a corporation or another form of reincorporating the Company in another jurisdiction;
entity or (2) any sale, assignment, transfer, conveyance, lease or other disposition of properties or assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiaries. Satisfaction of the requirements set forth in clauses (3) and (4) of Section 5.01(a) will not apply to (1) any merger or consolidation or merger between or among of the Company and any with or into one of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsfor any purpose or (2) with or into an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction.
Appears in 1 contract
Sources: Indenture (HighPeak Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) Person; or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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.
(b) Notwithstanding Section 5.01(a)(4) hereof, if (1) any Restricted Subsidiary consolidates with, merges into or transfers all or part of its properties and assets to the Company or to any other Restricted Subsidiary of the Company, (2) the Company merges with a Wholly Owned Subsidiary of the Company with no liabilities other than de minimis liabilities or (3) the Company merges with an Affiliate incorporated in the United States primarily for the purpose of reincorporating the Company in another jurisdiction, then no violation of this Section 5.01 shall be deemed to have occurred, as long as the requirements of clauses (1), (2) and (3) of Section 5.01(a) are satisfied.
(c) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among to the Company and its Wholly-or any Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among Subsidiary of the Company and by any of its Wholly-Owned the Company's Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, 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; provided that if the Person is a partnership or limited liability company, either (i) 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 or (ii) is a partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia that does not and will not have has at least one Restricted Subsidiary that is a corporation organized or existing under the laws of the United States, any material assets state thereof or operations the District of Columbia which corporation becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in duly and validly executed by the form of Exhibit E attached heretoTrustee;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this the Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The hereof. In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Synagro Technologies Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) directly or indirectly sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or 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; provided that if the such Person is not a partnership or limited liability companycorporation, such Person immediately causes a Subsidiary that is 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 becomes to be added as a co-issuer of the Notes pursuant to a supplemental indenture substantially in under the form of Exhibit E attached heretoIndenture;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance 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 (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in Section 4.09(a).
) hereof or (b) The have a Debt to Cash Flow Ratio no greater than the Debt to Cash Flow Ratio of the Company shall immediately prior to such transaction. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
: (1135) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: , (1a) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2b) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person; unless:
Person unless (1i) either:
either (A) the Company is the surviving corporation; or
corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) 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, conveyance or other disposition has shall have been made assumes all the obligations of the Company under the Notes, this Indenture Securities and the Registration Rights Agreement Indenture pursuant to agreements reasonably satisfactory to the Trustee;
, (3iii) immediately after such transaction, no Default or Event of Default exists; and
exists and (4iv) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made wouldshall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b3.06(a) hereof. The Company shall not, directly or indirectly, lease all or substantially all provisions of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This this Section 5.01 4.01 shall not apply to:
(1) be applicable to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation assets, or merger or consolidation, between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries Subsidiaries.
Section 10.01 of the Original Indenture shall not apply to the Securities and GuarantorsSection 12.05 of the Original Indenture shall be subject to the provisions of this Section 4.01.
Appears in 1 contract
Sources: First Supplemental Indenture (Prison Realty Trust Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey convey, or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Note Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance 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 Interest Coverage Ratio test set forth in Section 4.09(a).) hereof; or
(bB) The have had an Interest Coverage Ratio equal to or greater than the actual Interest Coverage Ratio for the Company shall immediately prior to such transaction; and
(5) the Company or the surviving entity, as the case may be, delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and the supplemental indenture, if any, comply with this Indenture. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating reorganizing the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Sources: Indenture (Unisys Corp)
Merger, Consolidation or Sale of Assets. SECTION 4. 1When the Company or Holdings May Merge or Otherwise Dispose of Assets.
(a) The Company shall not, directly may not consummate a Division as the Dividing Person or indirectly: (1) consolidate or merge with or into another Person or wind up into (whether or not the such Company is the surviving corporation) Person), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as assets, on a wholeconsolidated basis, in one or more related transactions, to another Person; any Person unless:
(1) either:
(Ai) the Company is the surviving corporation; or
(B) Person or the Person formed by or surviving any such consolidation consolidation, merger or merger winding up (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made is a corporation, partnership corporation or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Company or such Person, as the case may be, being herein called the “Successor Company”) and, if such entity is not a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws;
(ii) the Successor Company (if other than the Company) expressly assumes all the obligations of such Company under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test set forth in Section 3.3(a); or
(2) the Consolidated Total Debt Ratio for the Company (or, if applicable, the Successor Company thereto) and its Restricted Subsidiaries would be equal to or less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(vi) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Notes, and the Company will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv), (a) the Company or any Guarantor may consolidate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Guarantor, (b) the Company may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing the Company in another state of the United States, the District of Columbia or any territory of the United States so long as the principal amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and (c) any Restricted Subsidiary may merge into the Company.
(b) Subject to Section 10.2, each Guarantor will not, and the Company will not permit any Guarantor to, consummate a Division as the Person or consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person (other than in connection with the Transactions) unless such Division, consolidation, merger, winding up, sale, assignment, transfer, lease, conveyance or other disposition is made in compliance with Section 3.7 (except pursuant to clause (b) of the definition of “Asset Sale”), or unless:
(A) such Guarantor is the surviving Person or the District of Columbia; provided that Person formed by or surviving any such consolidation, merger or winding up (if the Person other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a partnership or corporation, partnership, limited partnership, limited liability company, a corporation wholly owned by such Person company or trust organized or existing under the laws of the United States, any state of the United States or thereof, the District of Columbia that does not and will not have or any material assets territory thereof (such Guarantor or operations becomes a co-issuer of such Person, as the Notes pursuant to a supplemental indenture substantially in case may be, being herein called the form of Exhibit E attached hereto“Successor Guarantor”);
(2B) the Person formed by or surviving any such consolidation or merger Successor Guarantor (if other than the Companysuch Guarantor) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made expressly assumes all the obligations of the Company such Guarantor under the Notes, this Indenture and the Registration Rights Agreement such Guarantor’s Guarantee pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture;
(3C) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction, ) no Default or Event of Default existsshall have occurred and be continuing; and
(4D) the Company, or the Person formed by or surviving any such consolidation or merger Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Company)Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(c) Subject to Article X, the Successor Guarantor will succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia or any territory of the United States, so long as the principal amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby, (2) a Subsidiary Guarantor may consolidate or merge with or into or wind up into, or to which such salesell, assignmentassign, transfer, conveyance lease, convey or other disposition has been made would, on the date otherwise dispose of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets to, another Subsidiary Guarantor or the Company, (3) a Guarantor may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of it the jurisdiction of organization of such Guarantor and its (4) any Restricted Subsidiaries taken as a wholeSubsidiary may merge into any Subsidiary Guarantor, provided, in one the case of this clause (4), that the surviving Person be a corporation, partnership, limited partnership, limited liability company or more related transactionstrust organized or existing under the laws of the United States, to any other Personstate thereof, the District of Columbia or any territory thereof.
(cd) This For purposes of this Section 5.01 shall not apply to:
(1) a merger of 4.1, the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, lease, conveyance, assignment, transfer, conveyance, lease transfer or other disposition of all or substantially all of the properties and assets between of one or among 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 its Wholly-Owned assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(e) Notwithstanding clauses (b) through (d) above, any Restricted Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; at such time, or
(3) any consolidation , with respect to assets not so held by one or merger between or among more Restricted Subsidiaries, such Division, in the Company and any aggregate, would otherwise result in an Asset Sale permitted by Section 3.7 of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsthis Indenture.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate consolidate, merge or merge amalgamate with or into another Person (whether or not the Company is the surviving corporation) ); or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1a) either:
(A) the Company is the surviving corporation; or
(B) the Person (the “Successor Company”) formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the Company) 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; provided that if the Person is a partnership or limited liability company, 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 is either (i) a corporation or operations becomes (ii) a limited partnership or limited liability company and is (or has previously been) joined by a corporation as a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoNotes;
(2b) 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, conveyance or other disposition has been made Successor Company assumes all the obligations of the Company under the Notes, this Indenture and Indenture, the Registration Rights Agreement and the Security Documents and pursuant to agreements reasonably satisfactory to the TrusteeTrustee and the Collateral Agent;
(3c) immediately after such transaction, no Default or Event of Default exists; and
(4d) either (i) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made Successor Company would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a4.11(a).
; or (bii) The the Company shall or the Successor Company would have a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio of the Company for the four-quarter period immediately prior to such transaction. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it the Company and its respective Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
Section 5.01 (c) This Section 5.01 shall and (d) will not apply to:
: (1i) 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 (2ii) any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Horizon Lines, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall Trust may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Trust is the surviving corporation) entity); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as Trust (computed on a wholeconsolidated basis), in one or more related transactions, to another Person; unless:
(1i) either:
: (Aa) the Company Trust is the surviving corporationcontinuing entity; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyTrust) or to which such sale, assignment, transfer, conveyance or other disposition has shall have 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 thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyTrust) or the Person to which such sale, assignment, transfer, conveyance or other disposition has shall have been made assumes all the obligations of the Company Trust under the Notes, this the Indenture and the Registration Rights Agreement Agreements pursuant to agreements reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
(4iv) the Company, Trust or the Person formed by or surviving any such consolidation or merger (if other than the CompanyTrust), or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made wouldmade:
(A) shall have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Trust immediately preceding the transaction; and
(B) shall, on the date of such transaction after giving pro forma effect Pro Forma Effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference 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 4.09(a).
4.09 hereof. The foregoing clause (biv) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company Trust and any of the Guarantors. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of all or substantially all of the properties and assets of one or more Subsidiaries, the Trust's interest in which constitutes all or substantially all of the properties and assets of the Trust shall be deemed to be the transfer of all or substantially all of the properties and assets of the Trust. Notwithstanding anything contained in this Indenture to the contrary, the Trust is permitted to contribute or otherwise transfer all of the Equity Interests of the Subsidiaries then held by the Trust (other than the Equity Interests of the Subsidiary which is to receive such contribution from the Trust) to Venture Holdings Corporation or other successor to the Trust (a "Trust Contribution"), provided that (A) any successor or surviving entity is organized and existing under the laws of the United States, any state thereof or the District of Columbia, (B) such contribution or reorganization is not materially adverse to Holders of the Notes; it being understood, however, that such contribution or reorganization shall not be considered materially adverse to Holders of the Notes solely because the successor or surviving entity is subject to income taxation as a corporate entity, (C) immediately after giving effect to such transaction, no Default or Event of Default exists, (D) the actions comprising such contribution or reorganization (e.g., the contribution of Capital Stock of the Subsidiaries, or the issuance of Capital Stock of the entity in exchange for assets of or Equity Interests in the Trust or in exchange for stock of an entity holding such Equity Interests, or the merger or consolidation of such entities) shall not themselves directly result in material income tax liability to the successor or surviving entity, (E) the successor or surviving entity has assumed all obligations of the Trust, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and the Indenture and (F) Holders of the Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such contribution or reorganization and shall be subject to federal income tax with respect to the Notes on the same amounts, in the same manner, and at the same time as would have been the case if such contribution or reorganization had not occurred. If the successor or surviving entity after a Trust Contribution is not a Pass-Through Entity, the Trust's ability to make Trust Tax Distributions must terminate prior to such contribution or reorganization (except with respect to Trust Tax Distributions in respect of taxable periods ending on or prior to the date such contribution or reorganization is effective for relevant tax purposes), other than Trust Tax Distributions in respect of Beneficiaries' income tax liability that results from the actions comprising such contribution or reorganization. The Trust shall deliver to the Trustee prior to such contribution or reorganization an Officers' Certificate covering clauses (A) through (F) and the preceding sentence of this paragraph, stating that such contribution or reorganization and such supplemental indenture comply with the Indenture, and an opinion of counsel covering clauses (A), (D), (E) and (F) above and the preceding sentence of this paragraph.
(b) A Guarantor may not consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Trust or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default exists; and
(ii) either: (a) the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Guarantor under the Indenture, its Wholly-Owned Restricted Subsidiaries Subsidiary Guarantee and the Registration Rights Agreement, pursuant to a supplemental indenture satisfactory to the Trustee or (b) the Net Proceeds of such sale or other disposition are applied in accordance with Section 4.11 hereof. The Subsidiary Guarantee of a Guarantor shall be released from its obligations under the Subsidiary Guarantee:
(1) in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Trust, if the Guarantor applies the Net Proceeds of that sale or other disposition are Domestic Subsidiaries and Guarantorsapplied in accordance with Section 4.11 hereof; or
(2) in connection with any sale of all of the Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Trust, if the Guarantor applies the Net Proceeds of that sale in accordance with Section 4.11 hereof; or
(3) if the Trust properly designates that Guarantor as an Unrestricted Subsidiary; provided, however, that any consolidation or merger between or among such termination shall occur only to the Company and any extent that all obligations of such Guarantor under all of its Wholly-Owned guarantees of, and under all of its pledges of assets or other security interests which secure, any Indebtedness of the Trust, the Guarantors or any other Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiary shall also terminate upon such sale, disposition or designation.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall Parent will not, directly or indirectly: (1) consolidate consolidate, merge or merge amalgamate with or into another Person (whether or not the Company Parent is the surviving corporation) 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 the Company Parent and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company Parent is the surviving corporationentity; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent) 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person an entity 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 or Canada or any material assets or operations becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretopolitical subdivision thereof;
(2) the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the CompanyParent) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Parent under the Notes, Parent’s Note Guarantee and this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Parent or the Person formed by or surviving any such consolidation consolidation, merger or merger amalgamation (if other than the CompanyParent), 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, 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) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company Parent and its Wholly-Owned 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 are Domestic 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 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 such Issuer and Guarantorsits Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(1) either: (a) such Issuer is the surviving entity; oror (b) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) 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; and, if such entity is not a corporation, a co-obligor of the Notes is a corporation organized or existing under any such laws;
(2) the Person formed by or surviving any such consolidation, merger or amalgamation (if other than such Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of such Issuer under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee;
(3) any consolidation immediately after such transaction, no Default or merger between or among Event of Default exists; and
(4) Parent would, on the Company 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 its Whollythe applicable four-Owned Restricted Subsidiaries 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) herein or (ii) have a Fixed Charge Coverage Ratio that are Domestic Subsidiaries and Guarantorsis 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.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall Trust may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Trust is the surviving corporation) entity); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as Trust (computed on a wholeconsolidated basis), in one or more related transactions, to another Person; unless:
(1i) either:
: (Aa) the Company Trust is the surviving corporationcontinuing entity; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the CompanyTrust) or to which such sale, assignment, transfer, conveyance or other disposition has shall have 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 thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyTrust) or the Person to which such sale, assignment, transfer, conveyance or other disposition has shall have been made assumes all the obligations of the Company Trust under the Notes, this the Indenture and the Registration Rights Agreement Agreements pursuant to agreements reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, transaction no Default or Event of Default exists; and
(4iv) the Company, Trust or the Person formed by or surviving any such consolidation or merger (if other than the CompanyTrust), or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made wouldmade:
(A) shall have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Trust immediately preceding the transaction; and
(B) shall, on the date of such transaction after giving pro forma effect Pro Forma Effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference 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 4.09(a).
4.09 hereof. The foregoing clause (biv) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company Trust and any of the Guarantors. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of all or substantially all of the properties and assets of one or more Subsidiaries, the Trust's interest in which constitutes all or substantially all of the properties and assets of the Trust shall be deemed to be the transfer of all or substantially all of the properties and assets of the Trust. Notwithstanding anything contained in this Indenture to the contrary, the Trust is permitted to contribute or otherwise transfer all of the Equity Interests of the Subsidiaries then held by the Trust (other than the Equity Interests of the Subsidiary which is to receive such contribution from the Trust) to Venture Holdings Corporation or other successor to the Trust (a "Trust Contribution"), provided that (A) any successor or surviving entity is organized and existing under the laws of the United States, any state thereof or the District of Columbia, (B) such contribution or reorganization is not materially adverse to Holders of the Notes; it being understood, however, that such contribution or reorganization shall not be considered materially adverse to Holders of the Notes solely because the successor or surviving entity is subject to income taxation as a corporate entity, (C) immediately after giving effect to such transaction, no Default or Event of Default exists, (D) the actions comprising such contribution or reorganization (e.g., the contribution of Capital Stock of the Subsidiaries, or the issuance of Capital Stock of the entity in exchange for assets of or Equity Interests in the Trust or in exchange for stock of a entity holding such Equity Interests, or the merger or consolidation of such entities) shall not themselves directly result in material income tax liability to the successor or surviving entity, (E) the successor or surviving entity has assumed all obligations of the Trust, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and the Indenture and (F) Holders of the Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such contribution or reorganization and shall be subject to federal income tax with respect to the Notes on the same amounts, in the same manner, and at the same time as would have been the case if such contribution or reorganization had not occurred. If the successor or surviving entity after a Trust Contribution is not a Pass-Through Entity, the Trust's ability to make Trust Tax Distributions must terminate prior to such contribution or reorganization (except with respect to Trust Tax Distributions in respect of taxable periods 72 ending on or prior to the date such contribution or reorganization is effective for relevant tax purposes), other than Trust Tax Distributions in respect of Beneficiaries' income tax liability that results from the actions comprising such contribution or reorganization. The Trust shall deliver to the Trustee prior to such contribution or reorganization an Officers' Certificate covering clauses (A) through (F) and the preceding sentence of this paragraph, stating that such contribution or reorganization and such supplemental indenture comply with the Indenture, and an opinion of counsel covering clauses (A), (D), (E) and (F) above and the preceding sentence of this paragraph.
(b) A Guarantor may not consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Trust or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default exists; and
(ii) either: (a) the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Guarantor under the Indenture, its Wholly-Owned Restricted Subsidiaries Subsidiary Guarantee and the Registration Rights Agreement, pursuant to a supplemental indenture satisfactory to the Trustee or (b) the Net Proceeds of such sale or other disposition are applied in accordance with Section 4.11 hereof. The Subsidiary Guarantee of a Guarantor shall be released from its obligations under the Subsidiary Guarantee:
(1) in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Trust, if the Guarantor applies the Net Proceeds of that sale or other disposition are Domestic Subsidiaries and Guarantorsapplied in accordance with Section 4.11 hereof; or
(2) in connection with any sale of all of the Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Trust, if the Guarantor applies the Net Proceeds of that sale in accordance with Section 4.11 hereof; or
(3) if the Trust properly designates that Guarantor as an Unrestricted Subsidiary; provided, however, that any consolidation or merger between or among such termination shall occur only to the Company and any extent that all obligations of such Guarantor under all of its Wholly-Owned guarantees of, and under all of its pledges of assets or other security interests which secure, any Indebtedness of the Trust, the Guarantors or any other Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiary shall also terminate upon such sale, disposition or designation.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the NotesNotes and this Indenture, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture or other agreements reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, transaction no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldshall, 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, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant under the Consolidated Coverage Ratio Test or (ii) (A) would have a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio of the Company immediately prior to such transaction and without taking into account such transaction and any related financing transactions and (B) has received and delivered to the Fixed Charge Coverage Ratio test set forth in Section 4.09(aTrustee letters from Moody's and S&P stating tha▇ ▇▇▇ ▇igh Yield Notes (if any are outstanding at that time), after giving effect to such transaction and any related financing transactions, will be rated at least "Ba1" and "BB" by such agencies, respectively; and
(5) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture.
(b) The In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall 5.1 will not apply to:
prohibit (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2i) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and any Restricted Subsidiary, (ii) any Restricted Subsidiary from consolidating with, merging into or transferring all or part of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orassets to the Company, or (iii) the Company from merging with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
(3c) In the event of any consolidation or merger between or among transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraph in which the Company is not the surviving Person and any the surviving Person is to assume all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, such surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company, and the Company would be discharged from its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries obligations under this Indenture and Guarantorsthe Notes.
Appears in 1 contract
Sources: Indenture (Covanta Energy Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall Parent Borrower will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Parent Borrower is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Parent Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless, subject to Section 9.22:
(1i) either:
either (A) the Company Parent Borrower is the surviving corporation; or
corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent 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; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent Borrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Parent Borrower under the Notes, this Indenture and the Registration Rights Agreement Loan Documents pursuant to joinder agreements or other documents and agreements reasonably satisfactory to the TrusteeAdministrative Agent;
(3iii) immediately after such transaction, no Default or Event of Default exists; and
(4iv) (A) the Company, Parent Borrower or the Person formed by or surviving any such consolidation or merger (if other than the CompanyParent Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, 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 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 provisions of Section 4.09(a)6.01(a) or (B) the Fixed Charge Coverage Ratio of the Parent Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Parent Borrower) is greater after giving pro forma 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 than the Parent Borrower’s actual Fixed Charge Coverage Ratio for the period.
(ba) The Company In addition, the Parent Borrower shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(cb) This Section 5.01 6.08 shall not apply to:
to (1i) a merger of the Company Parent Borrower with an Affiliate solely for the purpose of reincorporating the Company Parent Borrower in another jurisdiction;
jurisdiction or forming a direct holding company of the Parent Borrower; and (2ii) any sale, transfer, assignment, transfer, conveyance, lease or 144 US-DOCS\159452469.6 other disposition of assets between or among the Company Parent Borrower and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; orSubsidiaries, including by way of merger or consolidation.
(3c) Upon any consolidation or merger between merger, or among any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company assets of the Parent Borrower and any of its Wholly-Owned Restricted Subsidiaries taken as a whole in a transaction that are Domestic Subsidiaries is subject to, and Guarantorsthat complies with the provisions of, Sections 6.08(a) through and including 6.08(d), the successor corporation formed by such consolidation or into or with which the Parent Borrower is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Agreement and the other Loan Documents referring to the “Parent Borrower” shall refer instead to the successor corporation and not to the Parent Borrower), and may exercise every right and power of the Parent Borrower under this Agreement and the other Loan Documents with the same effect as if such successor Person had been named as the Parent Borrower herein; provided, however, that the predecessor Parent Borrower shall not be relieved from its payment obligations hereunder except in the case of a sale of all of the Parent Borrower’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.08(a) through and including 6.08(d).
(d) A Borrower (other than the Parent Borrower) will not, directly or indirectly, consolidate or merge with or into another Person (other than the Parent Borrower), unless either (A) such Borrower is the surviving Person or (B) the Person formed by or surviving any such consolidation or merger is a Loan Party.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) either: (a) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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 the Fixed Charge Coverage Ratio for the Company shall notor the Person formed by or surviving any such consolidation or merger, directly or indirectlyto which such sale, lease all assignment, transfer, conveyance or substantially all other disposition has been made would (if other than the Company), on the date of its properties such transaction after giving pro forma effect thereto and assets any related financing transactions as if the same had occurred at the beginning of it and its Restricted Subsidiaries taken as a wholethe applicable four-quarter period, in one or more related transactions, be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to any other Person.
(c) such transaction. This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Titan International Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia (provided that does if such Person is not and will not have any material assets or operations becomes a corporation, such Person shall be required to cause a subsidiary of such Person that is a corporation to be a co-issuer of obligor under the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoNotes);
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade, 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:
(A) 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).) hereof; or
(bB) The would have a Fixed Charge Coverage Ratio greater than the Fixed Charge Coverage Ratio of the Company shall immediately prior to such transaction. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Bell Powersports, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company Neither Parent nor either Co-Borrower (whichever is applicable, the “Subject Company”) shall not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the such Subject Company is the surviving corporation) or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Subject Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such entity is not a corporation, a co-obligor of the Person Loans is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretosuch laws;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Subject Company under the Notes, this Indenture and Loan Documents by operation of law (if the Registration Rights Agreement surviving Person is a Co-Borrower) or pursuant to agreements reasonably satisfactory to the TrusteeAdministrative Agent;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, be permitted to incur at least $1.00 of additional Indebtedness pursuant Subject Company shall have delivered to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The Administrative Agent an Officer’s Certificate stating that such consolidation, merger or transfer complies with this Agreement. In addition, a Subject Company shall will not, directly or indirectly, lease all or substantially all of its the properties and assets of it such Subject Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 shall 6.10(a) will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Parent and/or its Restricted Subsidiaries. Clauses (3) and (4) of Section 6.10(a) will not apply to the Company Airlines Merger, the Airline/Parent Merger or any merger, consolidation or transfer of assets:
(1) between or among Parent and its Wholly-Owned any of Parent’s Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries;
(2) between or among any of Parent’s Restricted Subsidiaries; or
(3) with or into an Affiliate solely for the purpose of reincorporating a Subject Company in another jurisdiction.
(c) Upon any consolidation or merger between merger, or among any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of any Subject Company in a transaction that is subject to, and any that complies with the provisions of, Section 6.10(a), the successor Person formed by such consolidation or into or with which such Subject Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of its Wholly-Owned Restricted Subsidiaries such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement referring to such Subject Company shall refer instead to the successor Person and not to such Subject Company), and may exercise every right and power of such Subject Company under this Agreement with the same effect as if such successor Person had been named as such Subject Company herein; provided, however, that are Domestic Subsidiaries the predecessor Subject Company, if applicable, shall not be relieved from the obligation to pay the principal of, and Guarantorsinterest, if any, on the Loan except in the case of a sale of all of such Subject Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.10(a) hereof.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Continental Airlines, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person or consummate a Division as the Dividing Person (whether or not the Company is the surviving corporation) corporation or Division Successor, as applicable); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) in the case of a Division where the Company is the Dividing Person, either all Division Successors shall become co-Issuers of the Notes or the Division, as to any Division Successor that will not be a co-Issuer, is permitted by the covenant described above under Section 4.10 or (b) in the case of any consolidation or merger either (i) the Company is the surviving corporation; or
or (Bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made (the “Surviving Entity”) is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by Surviving Entity or surviving any such consolidation or merger (if other than the Company) or the Person to which such saleDivision Successor, assignment, transfer, conveyance or other disposition has been made as applicable expressly assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements a supplemental indenture reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; andshall have occurred and be continuing;
(4) the Company, Company or the Person formed by Surviving Entity or surviving any such consolidation or merger (if other than the Company)Division Successor, or to which such sale, assignment, transfer, conveyance or other disposition has been made as applicable 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 (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).) or (B) have a Fixed Charge Coverage Ratio of not less than the Fixed Charge Coverage Ratio of the Company immediately prior to such merger, sale, assignment, transfer, lease, conveyance or other disposition; and
(b5) The the Company shall or the Surviving Entity or Division Successor, as applicable has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, conveyance, lease or other disposition and such supplemental indenture, if any, comply with the Indenture as evidence of the satisfaction of the conditions precedent set forth in this covenant, in which event it will be conclusive and binding on the Holders. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (MTS Systems Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
either (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) either: (a) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be 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 the Fixed Charge Coverage Ratio for the Company shall notor the Person formed by or surviving any such consolidation or merger, directly or indirectlyto which such sale, lease all assignment, transfer, conveyance or substantially all other disposition has been made would (if other than the Company), on the date of its properties such transaction after giving pro forma effect thereto and assets any related financing transactions as if the same had occurred at the beginning of it and its Restricted Subsidiaries taken as a wholethe applicable four-quarter period, in one or more related transactions, be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to any other Person.
(c) such transaction. This Section 5.01 shall not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (Titan International Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition 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; provided that if the Person is a partnership or limited liability company, either (i) 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 or (ii)) is a limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia that does not and will not have has at least one Restricted Subsidiary that is a corporation organized or existing under the laws of the United States, any material assets state thereof or operations the District of Columbia which corporation becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in duly and validly executed by the form of Exhibit E attached heretoTrustee;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement registration rights agreement pursuant to written agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a).
4.09. The preceding clause (b4) The shall not prohibit (i) a merger between the Company shall and a Restricted Subsidiary or (ii) a merger between the Company and an Affiliate with no substantial assets or liabilities for the sole purpose of incorporating or reincorporating or organizing or reorganizing the Company in another state of the United States, or the District of Columbia. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Sources: Indenture (H&e Finance Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) , consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in Section 4.09(a)) hereof.
(b) The In addition, the Company shall may not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
: (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
; or (2) any merger or consolidation, or any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporationsurvivor) or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trusteea supplemental indenture;
(3) immediately after such transaction, no Note Payment Default or Event of Default exists; and;
(4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the Companysame had occurred at the beginning of the applicable four-quarter period, either
(A) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance conveyance, lease or other disposition has been made wouldmade, 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, 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 Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, is equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and
(5) the Company 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, do not violate this Indenture.
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall will not apply to:
to (1) a merger any statutory conversion of the Company with an Affiliate solely for the purpose to a corporation or another form of reincorporating the Company in another jurisdiction;
entity or (2) any sale, assignment, transfer, conveyance, lease or other disposition of properties or assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiaries. Clauses (3) and (4) of Section 5.01(a) will not apply to (1) any merger or consolidation or merger between or among of the Company and any with or into one of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsfor any purpose or (2) with or into an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction.
Appears in 1 contract
Sources: Indenture (Penn Virginia Corp)
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1A) amalgamate, consolidate or merge with or into another Person (whether or not the Company is the Person formed by or surviving corporation) any such amalgamation, consolidation or merger); or (2B) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its the Restricted Subsidiaries 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; , unless:
(1) either:
either (Ax) the Company is will be the surviving corporation; or
or continuing Person or (By) the Person formed by or surviving any such amalgamation, consolidation or merger (if other than the Company) 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; provided that if the Person is a partnership or limited liability company, a corporation wholly owned by such Person organized or existing under the laws of a Permitted Jurisdiction (the United StatesCompany or such Person, any state of as the United States or case may be, being herein called the District of Columbia that does not and will not have any material assets or operations becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto“Successor Company”);
(2) the Person formed by or surviving any such consolidation or merger Successor Company (if other than the Company) or assumes all the Person obligations of the Company under the Notes and the other Notes Obligations and the Collateral Documents to which the Company is a party, if any, and agrees to be bound by all the provisions of this Indenture and such Collateral Documents pursuant to a supplemental indenture or an amendment thereto, as applicable;
(3) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(4) 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 Opinion of Counsel stating that the obligations of the Successor Company under this Indenture are enforceable under the laws of such Permitted Jurisdiction, subject to customary exceptions;
(6) if applicable, the Successor Company causes such amendments, supplements or other instruments with respect to the Collateral Documents to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the 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 the Collateral Documents, (b) be subject to 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
(8) 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) entry by the 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, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, subject to this Indenture Section 5.01(a) and the Registration Rights Agreement pursuant (ii) any Vessel Sale or Involuntary Vessel Transfer with respect to agreements reasonably satisfactory (x) more than one Deepwater Vessel or (y) a Deepwater Vessel and one or more Jackup Rigs will be deemed to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such constitute a sale, assignment, transfer, conveyance or other disposition has been made would, on of substantially all the date of such transaction after giving pro forma effect thereto properties and any related financing transactions as if the same had occurred at the beginning assets of the applicable four-quarter period, be permitted Company subject to incur at least $1.00 this Section 5.01(a). Clause (3) above will not apply to a merger of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth Company with an Affiliate if such merger is consummated for the sole purpose of reincorporating the Company in Section 4.09(a)another jurisdiction.
(b) The Company shall notnot permit any Guarantor to, directly or indirectly, lease 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 its the properties and or assets of it and its Restricted Subsidiaries taken as a wholesuch Guarantor, in one transaction or more a series of related transactions, including by way of liquidation or dissolution, to any other another Person.
(c) This Section 5.01 shall not apply to, unless:
(1) a merger (A) immediately after giving effect to such transaction or series of the Company with an Affiliate solely for the purpose related transactions, no Default or Event of reincorporating the Company in another jurisdictionDefault exists;
(2) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance 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 (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 (bB) The have a Fixed Charge Coverage Ratio of not less than the Fixed Charge Coverage Ratio of the Company shall immediately prior to such merger, sale, assignment, transfer, lease, conveyance or other disposition. In addition, the Company will not, directly or indirectly, lease all or substantially all of its the properties and assets of it the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of Assets. (a) The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
: (Aa) the Company is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement (if any) pursuant to agreements reasonably satisfactory to the Trusteetrustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made 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 fourtwo-quarter period, either (a) have a Debt to Cash Flow Ratio no higher than the Company's Debt to Cash Flow Ratio immediately prior to such transaction, or (b) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in Section 4.09(a).
(b) The . In addition, the Company shall will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) the merger of IWO Escrow with and into IWO Holdings, Inc. in connection with the Reorganization;
(2) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(23) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries; or
(34) any merger or consolidation or merger between or among of the Company with a corporation that, prior to such merger, (a) does not have any liabilities or significant assets other than cash and any (b) was formed solely for the purpose of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsfacilitating the formation of a holding company whose principal asset is the common stock of the Company.
Appears in 1 contract
Sources: Indenture (Iwo Holdings Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporationPerson) or continue in another jurisdiction; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a wholeCompany, in one or more related transactions, to another Person; , unless:
(1a) either:
: (Ai) the Company is the surviving corporationPerson; or
or (Bii) the Person (the “Successor Company”) formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition 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; provided that if the Person is a partnership or limited liability company, 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 becomes shall promptly thereafter become a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached heretoindenture;
(2b) 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 has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture and other agreements reasonably satisfactory to the Trustee;
(3c) immediately after such transaction, transaction no Default or Event of Default exists; and;
(4d) either:
(i) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).3.3(a) hereof; or
(bii) The 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 (if 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) the Company shall nothave delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, directly each stating that such consolidation, merger or indirectlydisposition and such supplemental indenture (if any) comply with this Indenture. For purposes of this covenant, lease the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the assets of the Company. Notwithstanding the preceding clauses (c) and (d) of this Section 4.1, (x) any Restricted Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) This Section 5.01 shall not apply to:
(1) a merger of the Company or any Guarantor, and (y) the Company may merge with an Affiliate solely for the purpose of reincorporating or reorganizing the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease jurisdiction to realize tax or other disposition of assets between or among benefits. The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Company and under this Indenture, but, in the case of a lease of all or substantially all its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among assets, the Company will not be released from the obligation to pay the principal of, premium, if any, on and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries interest and GuarantorsAdditional Interest, if any, on, the Notes.
Appears in 1 contract
Sources: Indenture (Venoco, Inc.)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company, or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, 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, 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).
(b) The hereof. In addition, the Company shall will not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a wholeor assets, in one or more related transactions, to any other Person.
(c) . This Section 5.01 shall will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) any merger or consolidation, or any sale, transfer, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors.Guarantor;
Appears in 1 contract
Sources: Indenture (Gardner Denver Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose Dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition Disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) 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, conveyance or other disposition Disposition has been made assumes all the obligations Obligations of the Company under the NotesSecurity Documents, the Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition Disposition has been made wouldmade, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Bank Consolidated First Lien Leverage Ratio, Bank Consolidated Leverage Ratio and Bank Consolidated Interest Coverage Ratio test tests set forth in Section 4.09(a).) hereof; and
(b5) The all rights afforded to the Company shall or the Parent Entity by the Environmental Indemnity Agreements are effectively assigned, in full, to the Person formed by or surviving any such consolidation or merger (if other than the Company or the Parent Entity) or the Person to which such sale, assignment, transfer, conveyance or other Disposition has been made pursuant to agreements reasonably satisfactory to the Trustee. In addition, the Company may not, directly or indirectly, lease all or substantially all of its the properties and assets of it the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person, and the Parent Entity will not consolidate or merge with any entity other than another Parent Entity and will not permit any merger by any future Parent Entity unless and until the conditions set forth in clauses (1) through (5) above have been satisfied.
(c) This Section 5.01 shall will not apply to:
(1A) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2B) any consolidation or merger or any sale, assignment, transfer, conveyance, lease or other disposition Disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsSubsidiaries; or
(3C) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsa Parent Entity Transaction.
Appears in 1 contract
Sources: First Supplemental Indenture (Appleton Papers Inc/Wi)
Merger, Consolidation or Sale of Assets. (a) a. The Company shall will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) ); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) . either:
(A) A. the Company is the surviving corporation; or
(B) B. the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) . 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, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement Collateral Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3) . immediately after such transaction, no Default or Event of Default exists; and
(4) . the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance 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 (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) The have a Fixed Charge Coverage Ratio greater than the Fixed Charge Coverage Ratio immediately prior to such transactions. In addition, the Company shall will not, directly or indirectly, lease all or substantially all of its the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
b. Clauses (c3) This and (4) of Section 5.01 shall 5.01(a) will not apply to:
(1) . a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;; or
(2) . any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company Company, the Guarantors and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsImmaterial Subsidiaries.
Appears in 1 contract
Sources: Indenture (Castle a M & Co)
Merger, Consolidation or Sale of Assets. (a) The Company shall may not, directly or indirectly: (1) , consolidate or merge with or into another Person (whether or not the Company is the surviving corporationPerson) or (2) sell, assign, transfer, convey convey, lease or otherwise dispose of all or substantially all of the its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; , unless:
(1) either:
(A) the Company is the surviving corporationPerson; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of the United StatesStates of America, any state of the United States thereof or the District of Columbia; provided that that, if the Person such entity is not a partnership or limited liability companycorporation, 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 becomes a co-issuer obligor of the Notes pursuant to is a supplemental indenture substantially in the form of Exhibit E attached heretocorporation;
(2) 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, conveyance or other disposition has been made assumes by supplemental indenture and joinders or other agreements to the Registration Rights Agreement all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement (to the extent the Company’s obligations thereunder have not been completed) pursuant to agreements reasonably in form satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and;
(4) the Company, Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldwill, 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 a Fixed Charge Coverage Ratio that is no worse than the Fixed Charge Coverage Ratio of the Company for such applicable four-quarter period without giving pro forma effect to such transactions and any related financing transactions; and
(5) the Company shall deliver, or cause to be delivered, to the Trustee, in form satisfactory to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied.
(b) The Company shall notsale, directly assignment, transfer, lease, conveyance or indirectly, lease other disposition of all or substantially all of its the properties and or assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactionsSubsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to any other Personbe the transfer of all or substantially all of the properties or assets of the Company.
(c) This Upon any transaction or series of transactions that are of the type described in, and are effected in accordance with, conditions described in this Section 5.01 5.01, the surviving entity shall not apply succeed to:
(1) , and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as applicable, under this Indenture and the Notes with the same effect as if such surviving entity had been named as the Company or the Guarantor, as applicable, of the Notes; and when a merger surviving entity duly assumes all of the obligations and covenants of the Company with an Affiliate solely for or the purpose of reincorporating Guarantor, as applicable, pursuant to this Indenture, the Notes, the Subsidiary Guarantee and, if applicable, the Registration Rights Agreement, the Company in another jurisdiction;or the Guarantor, as applicable, or any other predecessor Person shall be relieved of such obligations.
(2d) Section 5.01(a) will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and or any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
Subsidiaries. Clauses (3) and (4) of Section 5.01(a) will not apply to (1) any merger or consolidation of the Company or a Guarantor with or into a Restricted Subsidiary of the Company for any purpose or (2) the merger between of the Company or among a Guarantor with or into an Affiliate solely for the purpose of reincorporating the Company or such Guarantor, as the case may be, in another jurisdiction under the laws of the United States, any state of the United States or the District of Columbia so long as the amount of Indebtedness of the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantorsis not increased thereby.
Appears in 1 contract
Sources: Indenture (Molina Healthcare Inc)
Merger, Consolidation or Sale of Assets. (a) The Neither the Company shall notnor any Guarantor may, directly or indirectly: (1a) consolidate or merge with or into another Person (whether or not the Company or the Guarantor is the surviving corporation) ); or (2b) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
either (A) the Company or the Guarantor is the surviving corporation; or
corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or the Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or the Guarantor) or the Person to which such sale, assignment, transfer, conveyance or other disposition has shall have been made assumes all the obligations of the Company or the Guarantor under the Notes, this Indenture and Indenture, the Registration Rights Agreement and the Collateral Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) the CompanyCompany or the Guarantor, as the case may be, or the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or such Guarantor), or to which such sale, assignment, transfer, conveyance or other disposition has shall have been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) 4.09 hereof. This Section 5.01 shall section will not apply to:
(1) to a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease conveyance or other disposition of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger between or among the Company and any of its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries or any of the Guarantors. Moreover, in any event, no merger or other dissolution of HWCC-Aurora Management, ▇▇▇▇▇ Management, L.P. or ▇▇▇▇▇ Casino Corporation in connection with the Company's acquisition of ▇▇▇▇▇ Casino Corporation and Guarantorsthe termination of the Aurora Management Agreement and the Tunica Consulting Agreement shall constitute a breach of the provisions of this Section 5.01.
Appears in 1 contract
Sources: Indenture (HWCC Shreveport Inc)
Merger, Consolidation or Sale of Assets. (a) The Company OI Group shall not, in any transaction or series of transactions, merge or consolidate with or into or, directly or indirectly: (1) consolidate , Transfer all or merge with substantially all of its properties and assets to, any Person or Persons, and OI Group shall not permit any of its Restricted Subsidiaries to enter into another Person (whether any such transaction or not series of transactions if such transaction or series of transactions, in the Company is the surviving corporation) or (2) sellaggregate, assign, transfer, convey or otherwise dispose would result in a Transfer of all or substantially all of the properties or and assets of the Company OI Group and its Restricted Subsidiaries taken as Subsidiaries, on a whole, in one or more related transactionsconsolidated basis, to another Person; unlessany other Person or Persons, unless at the time and after giving effect thereto:
(1) either:
: (Aa) OI Group or such Restricted Subsidiary, as the Company case may be, is the surviving corporation; or
or (Bb) the Person formed by or surviving any such consolidation or merger (if other than OI Group or such Restricted Subsidiary) (the “Successor Company”) or to which such sale, assignment, transfer, conveyance or other disposition has Transfer shall have been made is a corporation, partnership or limited liability company corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2) the Person formed by or surviving any such consolidation or merger Successor Company (if other than the CompanyOI Group or such Restricted Subsidiary) or the Person to which such sale, assignment, transfer, conveyance or other disposition has 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 Company case may be, under the Notes, Notes and this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, transaction no Default or Event of Default exists; and
(4) the Company, OI Group or the Person Successor Company formed by or surviving any such consolidation or merger (if other than the CompanyOI Group), or the Person to which such saleTransfer shall have been made, assignment, transfer, conveyance delivers or other disposition has been made would, on causes to be delivered to the date Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such transaction after giving pro forma effect or series of transactions and the supplemental indenture in respect thereto comply with the Indenture and any related financing transactions as if that all conditions precedent provided for in the same had occurred at Indenture relating to such transaction and the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
(b) The Company shall not, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) supplemental indenture have been complied with. This Section 5.01 shall not apply to:
to (1i) a merger or consolidation of OI Group, the Company or any of the Company Guarantors with an Affiliate solely for or into any other of the purpose Company, OI Group or any of reincorporating the Company in another jurisdiction;
(2) any sale, assignment, transfer, conveyance, lease Guarantors or other disposition the Transfer of assets between or among the Company and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and Guarantors; or
(3) any consolidation or merger 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 that are Domestic Subsidiaries and Guarantorsor the Transfer of assets from any Foreign Subsidiary to OI Group or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Owens-Illinois Group Inc)
Merger, Consolidation or Sale of Assets. (a) The Company shall notNeither the Parent nor the Issuer may, directly or indirectly: (1i) consolidate merge, consolidate, amalgamate or merge otherwise combine with or into another Person (whether or not the Company Parent or the Issuer (as applicable) is the surviving corporation) ); or (2ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company Parent and its Restricted Subsidiaries taken as a whole or the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person; , unless:
(1i) either:
: (Aa) the Company Parent or the Issuer (as applicable) is the surviving corporationPerson; or
or (Bb) the Person formed by or surviving any such consolidation merger, consolidation, amalgamation or merger other business combination (if other than the CompanyParent or the Issuer (as applicable)) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation, partnership or limited liability company an entity organized or existing under the laws of any European Union Member State, Switzerland, Norway, Canada, the United States, any state of the United States or the District of Columbia; provided that if the Person is a partnership or limited liability company, 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 becomes a co-issuer of the Notes pursuant to a supplemental indenture substantially in the form of Exhibit E attached hereto;
(2ii) the Person formed by or surviving any such consolidation merger, consolidation, amalgamation or merger other business combination (if other than the CompanyParent or the Issuer (as applicable)) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company Issuer or the Parent (as applicable) under the NotesNotes or the Parent’s Guarantee, respectively, this Indenture and the Registration Rights Agreement Security Documents pursuant to agreements reasonably satisfactory to the Trustee;
(3iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default existsexists and is continuing; and
(4iv) the CompanyParent, the Issuer (as applicable) or the Person formed by or surviving any such consolidation merger, consolidation, amalgamation or merger other business combination (if other than the CompanyParent or the Issuer (as applicable)), or to which such sale, assignment, transfer, conveyance or other disposition has been made wouldmade:
(1) (unless the transaction involves a merger with a corporation having no Indebtedness, material assets, material contractual obligations or material liabilities, in which the Parent survived), 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, (i) will 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).4.3(a) (Incurrence of Indebtedness and Issuance of Preferred Stock) or (ii) the Fixed Charge Coverage Ratio Improves; and
(b2) The Company shall notfurnishes to the Trustee an Officers’ Certificate stating that the transaction complies with this Indenture. In addition, neither the Parent nor the Issuer shall, directly or indirectly, lease all or substantially all of its properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(cb) This Section 5.01 A Guarantor (other than the Parent) shall not:
(i) directly or indirectly merge, consolidate, amalgamate or otherwise combine with or into another Person (whether or not apply to:such Guarantor is the surviving corporation); or
(ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of its assets (including by way of liquidation or similar transaction), taken as a whole, in one or more related transactions, to another Person; unless
(1) a merger immediately after giving pro forma effect to such transaction, no Default or Event of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction;Default exist and is continuing; and
(2) either:
(A) if such entity remains (or its successor will remain) a Guarantor, (A) such Guarantor is the surviving Person; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor or another Guarantor) or to which such sale, assignment, transfer, conveyance, lease conveyance or other disposition distribution has been made if not a Guarantor assumes all the obligations of assets between or among the Company that Guarantor under this Indenture and its Wholly-Owned Restricted Subsidiaries that are Domestic Subsidiaries and GuarantorsGuarantee pursuant to a supplemental indenture substantially in the form attached as Exhibit D hereto; or
(3B) the merger, consolidation, amalgamation or other combination or sale or disposition of all or substantially all of its assets complies with Section 4.12 (Asset Sales).
(c) Notwithstanding the preceding provisions of this Section 4.20:
(i) any consolidation Guarantor may merge, consolidate, amalgamate or merger between otherwise combine with or among into an Affiliate primarily for the Company and purpose of reincorporating such Guarantor under the laws of any European Union Member State, Switzerland, Norway, Canada, Russia, Cyprus, Luxembourg, the United States, any state of the United States or the District of Columbia (except that the Parent may so reincorporate only in any state of the United States or any European Member Union State); and
(ii) a Restricted Subsidiary may merge, consolidate, amalgamate or otherwise combine with or into or sell, assign, transfer, convey, lease or otherwise dispose of assets to the Parent or any of its WhollyRestricted Subsidiaries.
(d) Any successor entity (if other than a Guarantor or the Issuer, as the case may be) will succeed to, and be substituted for, and may exercise every right and power of, the non-Owned Restricted Subsidiaries that are Domestic Subsidiaries surviving Guarantor or the Issuer, as the case may be, under the Indenture, the Notes, the non-surviving Guarantor’s Guarantee, the Intercompany Loan and Guarantorsthe Security Documents (and other relevant agreements hereunder), in each case, to the extent a party thereto, and upon such substitution, the predecessor Person shall be released.
Appears in 1 contract
Sources: Indenture (CEDC Finance Corp LLC)