Amalgamation or Merger of Trust Fund Sample Clauses
Amalgamation or Merger of Trust Fund. 18.1 ABILITY TO MERGE OR AMALGAMATE
Amalgamation or Merger of Trust Fund
Consolidation, Merger or Sale of Assets Nothing in this Agreement shall preclude the Company from consolidating or merging into or with, or transferring all or substantially all of its assets to, another corporation which assumes this Agreement, and all obligations of the Company hereunder, in writing. Upon such consolidation, merger, or transfer of assets and assumption, the term "the Company" as used herein, shall mean such other corporation and this Agreement shall continue in full force and effect, subject to the provisions of Paragraph 6 hereof.
Consolidation or Merger The Issuer may consolidate with, or sell, lease or convey all or substantially all of its assets as an entirety to, or merge with or into any other corporation provided that in any such case, (i) either the Issuer shall be the continuing corporation, or the successor corporation shall be a corporation organised and existing under the laws of the jurisdiction in which the Issuer is incorporated or any province, territory, state or other political subdivision thereof and such successor corporation shall expressly assume the due and punctual payment of the principal of and interest (including Additional Amounts as provided in Condition 7) on all the Notes and Coupons, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the Notes to be performed by the Issuer by an amendment to the Agency Agreement or, as the case may be, the TCCI Note Agency Agreement or the TMCC Note Agency Agreement, executed by such successor corporation, the Issuer and the Agent or the TCCI Registrar and the TCCI Transfer Agent or the TMCC Registrar and the TMCC Transfer Agent, as the case may be, and (ii) immediately after giving effect to such transaction, no Event of Default under Condition 9, and no event which, with notice or lapse of time or both, would become such an Event of Default shall have happened and be continuing. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein as the Issuer, and the predecessor corporation, except in the event of a conveyance by way of lease, shall be relieved of any further obligation under the Notes and the Agency Agreement or, as the case may be, the TCCI Note Agency Agreement or the TMCC Note Agency Agreement.
Sale of Assets, Consolidation, Merger, Dissolution, Etc Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly. (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; or (i) sales of Inventory in the ordinary course of business, (ii) the sale of any of the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing; (iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing; (iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (A) at the time of the grant of the license and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (B) the rights of the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof; (v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower or Guarantor from such sale, (B) Borrower or Guarantor shall not be required to pay any dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 8.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that limit the right of Borrower to request or receive Loans or Letter of Credit Accommodations or to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine and (E) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing; (vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request, (c) wind up, liquidate or dissolve; or (d) agree to do any of the foregoing.
Consolidation, Merger or Sale or Transfer of Assets or Earning Power In the event that, at any time after a Person becomes an Acquiring Person, directly or indirectly, (i) the Company shall consolidate with, or merge with and into, any other Person, (ii) any Person shall consolidate with the Company, or merge with and into the Company and the Company shall be the continuing or surviving corporation of such merger and, in connection with such merger, all or part of the Common Shares shall be changed into or exchanged for stock or other securities of any other Person (or the Company) or cash or any other property, or (iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person other than the Company or one or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision shall be made so that (A) each holder of a Right (except as otherwise provided herein) shall thereafter have the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-thousandths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares, such number of Common Shares of such other Person (including the Company as successor thereto or as the surviving corporation) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the number of one one-thousandths of a Preferred Share for which a Right is then exercisable and dividing that product by (y) 50% of the then current per share market price of the Common Shares of such other Person (determined pursuant to Section 11(d) hereof) on the date of consummation of such consolidation, merger, sale or transfer; (B) the issuer of such Common Shares shall thereafter be liable for, and shall assume, by virtue of such consolidation, merger, sale or transfer, all the obligations and duties of the Company pursuant to this Agreement; (C) the term "Company" shall thereafter be deemed to refer to such issuer; and (D) such issuer shall take such steps (including, but not limited to, the reservation of a sufficient number of its Common Shares in accordance with Section 9 hereof) in connection with such consummation as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to the Common Shares thereafter deliverable upon the exercise of the Rights. The Company covenants and agrees that it shall not consummate any such consolidation, merger, sale or transfer unless prior thereto the Company and such issuer shall have executed and delivered to the Rights Agent a supplemental agreement so providing. The Company shall not enter into any transaction of the kind referred to in this Section 13 if at the time of such transaction there are any rights, warrants, instruments or securities outstanding or any agreements or arrangements which, as a result of the consummation of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights. The provisions of this Section 13 shall similarly apply to successive mergers or consolidations or sales or other transfers. For purposes hereof, the "earning power" of the Company and its Subsidiaries shall be determined in good faith by the Company's Board of Directors on the basis of the operating earnings of each business operated by the Company and its Subsidiaries during the three fiscal years preceding the date of such determination (or, in the case of any business not operated by the Company or any Subsidiary during three full fiscal years preceding such date, during the period such business was operated by the Company or any Subsidiary).