MNI » Topics » SUCCESSOR CORPORATION

This excerpt taken from the MNI 8-K filed Jun 30, 2009.

SUCCESSOR CORPORATION

Section 5.1. Limitation on Merger, Consolidation or Sale of Assets by the Company.

(a) The Company shall not (i) merge or consolidate with or into any Person (other than a merger of a Restricted Subsidiary into the Company) or (ii) sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the properties and assets of the Company and the Restricted Subsidiaries, taken as a whole, in one transaction or a series of related transactions, unless:

(i) either (A) if the transaction or series of transactions is a merger or consolidation, the Company will be the surviving Person of such merger or consolidation, or (B) the Person formed by such consolidation or into which the Company is merged or to which the properties and assets of the Company and the Restricted Subsidiaries, taken as a whole, are transferred (any such surviving person or transferee Person being the “Surviving Entity”) will be a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and expressly assumes by a supplemental indenture executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes and the Indenture; and

(ii) immediately before and immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), no Default shall have occurred and be continuing and the Company or the Surviving Entity, as the case may be, after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), could incur $1.00 of Coverage Indebtedness pursuant to Section 4.9.

(b) In connection with any consolidation, merger or transfer of assets contemplated by this Section 5.1, the Company will deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and the supplemental indenture in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or transactions have been complied with.

Section 5.2. Successor Person Substituted for the Company.

Upon any consolidation or merger, or any transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries in accordance with this covenant, the successor corporation formed by such consolidation or into which the Company is merged or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor corporation had been named as the Company therein, and thereafter (except with respect to any such transfer which is a lease) the predecessor corporation shall be relieved of all obligations and covenants under the Indenture and the Notes.

 

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Section 5.3. Limitation on Merger, Consolidation or Sale of Assets by a Guarantor.

(a) The Company will not permit any Guarantor to (i) merge or consolidate with or into, any Person (other than a merger with or into the Company or another Guarantor), or (ii) sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, taken as a whole, in one transaction or a series of related transactions (other than to the Company or another Guarantor), unless:

(i) except in the case of a Guarantor that (x) has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) as a result of the disposition of all or a portion of its Capital Stock ceases to be a Subsidiary, in both cases, if in connection therewith the Company provided an Officers’ Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.12 in respect of such disposition, the resulting, surviving or transferee Person (if not such Guarantor) will be a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and expressly assumes by a supplemental indenture executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Guarantor under its Guarantee and the Indenture; and

(ii) immediately before and immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), no Default shall have occurred and be continuing.

(b) In connection with any consolidation, merger or transfer of assets contemplated by this Section 5.3, the Guarantor will deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and the supplemental indenture in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or transactions have been complied with.

Section 5.4. Successor Person Substituted for Guarantor.

Upon satisfaction of the conditions set forth in Section 5.3, the surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Guarantor under the Indenture; provided, however, that the predecessor company in the case of a lease of all or substantially all of its assets shall not be released from any of the obligations or covenants under the Indenture and the Notes, including with respect to the payment of the Notes, and in all other cases the predecessor company shall be released from all obligations and covenants under the Indenture.

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