Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: The Company shall not merge or consolidate with or into any other Person (other than a merger of a wholly owned Subsidiary of the Company into the Company) or sell, transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided that, for the avoidance of doubt, a pledge of assets pursuant to any secured debt instrument of the Company or its Subsidiaries shall not be deemed to be any such sale, transfer, lease, conveyance or disposition) in one transaction or series of related transactions unless: a) the Company shall be the surviving Person (the “Surviving Person”) or the Surviving Person (if other than the Company) formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall be a corporation or limited liability company organized and existing under the laws of the United States of America, any state thereof or the District of Columbia; b) the Surviving Person (if other than the Company) expressly assumes, by supplemental indenture in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes outstanding, and the due and punctual performance and observance of all the covenants and conditions of the Indenture to be performed by the Company; c) immediately before and immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default shall have occurred and be continuing; and d) the Company or such Surviving Person shall deliver, or cause to be delivered, to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this Section 4.01 and that all conditions precedent in the Indenture relating to such transaction have been complied with.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Babcock & Wilcox Enterprises, Inc.), Supplemental Indenture (Babcock & Wilcox Enterprises, Inc.)
Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: The Company shall indenture provides that we will not merge or consolidate with or into any other Person person (other than a merger of a wholly owned Subsidiary of the Company subsidiary into the Company) us), or sell, transfer, lease, convey or otherwise dispose of all or substantially all of its our property (provided that, for the avoidance of doubt, a pledge of assets pursuant to in any secured debt instrument of the Company or its Subsidiaries shall not be deemed to be any such sale, transfer, lease, conveyance or disposition) in one transaction or series of related transactions unless:
a) the Company shall be : • we are the surviving Person (the “Surviving Person”) entity or the Surviving Person entity (if other than the Companyus) formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall will be a corporation or limited liability company organized and existing under the laws of the United States of America, any state thereof or the District of Columbia;
b) ; • the Surviving Person surviving entity (if other than the Companyus) expressly assumes, by supplemental indenture in form reasonably satisfactory to the Trusteetrustee, executed and delivered to the Trustee trustee by such Surviving Personsurviving entity, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes outstanding, and the due and punctual performance and observance of all the covenants and conditions of the Indenture indenture to be performed by the Company;
c) us; • immediately before and immediately after giving effect to such transaction or series of related transactions, no Default default or Event of Default shall have has occurred and be is continuing; and
d) and • in the Company case of a merger where the surviving entity is other than us, we or such Surviving Person shall surviving entity will deliver, or cause to be delivered, to the Trusteetrustee, an Officer’s Certificate officers’ certificate and an Opinion opinion of Counselcounsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto thereto, comply with this Section 4.01 covenant and that all conditions precedent in the Indenture indenture relating to such transaction have been complied with.
Appears in 1 contract
Samples: Sales Agreement
Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: The Company shall not merge or consolidate with or merge with or into (whether or not the Company is the Surviving Person) any other Person (other than a merger of a wholly owned Subsidiary of entity and the Company into the Company) shall not and shall not cause or permit any Restricted Subsidiary to, sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its property the Company's and the Restricted Subsidiaries' properties and assets (provided that, determined on a consolidated basis for the avoidance of doubt, a pledge of assets pursuant Company and the Restricted Subsidiaries) to any secured debt instrument of the Company or its Subsidiaries shall not be deemed to be any such sale, transfer, lease, conveyance or disposition) entity in one a single transaction or series of related transactions transactions, unless:
a: (i) either (x) the Company shall be the surviving Person (the “Surviving Person”) or the Surviving Person or (if other than the Company) formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall be a corporation or limited liability company organized and existing under the laws of the United States of America, any state thereof or the District of Columbia;
by) the Surviving Person (if other than the Company) shall be a Person organized and validly existing under the laws of the United States of America or any State thereof or the District of Columbia and shall expressly assumes, assume by a supplemental indenture in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Personindenture, the due and punctual payment of the principal of, and premium, if any, and interest on, on all the Notes outstanding, and the due and punctual performance and observance of all every covenant of this Indenture and the covenants and conditions of the Indenture Registration Rights Agreement to be performed by or observed on the part of the Company;
c; (ii) immediately before and immediately after giving effect to such the transaction or series of related transactions, no Default or Event of Default shall have occurred and be continuing; and
dand (iii) immediately after giving effect to any such transaction or series of transactions involving the incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been incurred at the time of such transaction), the Surviving Person (A) shall deliver, have a Consolidated Net Worth equal to or cause greater than the Consolidated Net Worth of the Company immediately prior to be delivered, to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture(B) could incur, if any, in respect thereto comply with this Section 4.01 and that all conditions precedent in the Indenture relating on a pro forma basis after giving effect to such transaction have been complied as if it had occurred at the beginning of the four quarter period immediately preceding such transaction for which consolidated financial statements of the Company are available, at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the Consolidated Fixed Charge Coverage Ratio of the first paragraph in Section 4.9 hereof. Notwithstanding the foregoing clause (iii) of the immediately preceding sentence, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its property and assets to the Company and any Wholly Owned Restricted Subsidiary may consolidate with, merge into or transfer all or part of its property and assets to another Wholly Owned Restricted Subsidiary. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the properties and assets of one or more Restricted Subsidiaries the Equity Interest of which constitutes all or substantially all the properties and assets of the Company shall be deemed to be the transfer of all or substantially all the properties and assets of 51 45 the Company.
Appears in 1 contract
Samples: Indenture (Laroche Industries Inc)
Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not will not, directly or indirectly, consolidate, amalgamate or merge or consolidate with or into any other another Person (other than a merger regardless of a wholly owned Subsidiary of whether the Company is the surviving corporation), convert into the Company) another form of entity or continue in another jurisdiction, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided thatproperties or assets, for the avoidance of doubt, a pledge of assets pursuant to any secured debt instrument of the Company or its Subsidiaries shall not be deemed to be any such sale, transfer, lease, conveyance or disposition) in one transaction or series of more related transactions transactions, to another Person, unless:
a(i) either: (A) the Company shall be is the surviving corporation; or (B) the Person (the “Surviving Person”) formed by or the Surviving Person surviving any such consolidation, amalgamation or merger or resulting from such conversion (if other than the Company) formed by such merger or consolidation or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is made shall be a corporation or corporation, limited liability company or limited partnership organized and or existing under the laws of the United States of AmericaStates, any state thereof of the United States or the District of Columbia;
b(ii) the Surviving Person formed by or surviving any such conversion, consolidation, amalgamation or merger (if other than the Company) expressly assumesor the Person to which such sale, by supplemental indenture in form assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; provided that, executed and delivered unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by agreements reasonably satisfactory to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes outstanding, and the due and punctual performance and observance of all the covenants and conditions of the Indenture to be performed by the CompanyTrustee;
c(iii) immediately before and immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default shall have occurred and be continuing; andexists;
d(iv) the Company or the Person formed by or surviving any such Surviving Person shall deliverconsolidation, amalgamation or merger (if other than the Company), or cause to which such sale, assignment, transfer, conveyance or other disposition has been made:
(A) would have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction;
(B) 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 delivered, permitted to incur at least $1.00 of additional Indebtedness pursuant to the TrusteeFixed Charge Coverage Ratio test set forth in Section 10.11(a) of this Indenture; or
(C) 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, have a Fixed Charge Coverage Ratio that is not less than the Fixed Charged Coverage Ratio of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(v) the Company has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such transaction consolidation, amalgamation, merger, conveyance, sale, transfer or lease and the such supplemental indenture, if any, in respect thereto comply with this Section 4.01 Article Eight and that all conditions precedent in the Indenture herein provided for relating to such transaction have been complied with.
Appears in 1 contract
Samples: Twelfth Supplemental Indenture (Plains Exploration & Production Co)
Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not will not, directly or indirectly, consolidate, amalgamate or merge or consolidate with or into any other another Person (other than a merger regardless of a wholly owned Subsidiary of whether the Company is the surviving corporation), convert into the Company) another form of entity or continue in another jurisdiction; or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided thatproperties or assets, for the avoidance of doubt, a pledge of assets pursuant to any secured debt instrument of the Company or its Subsidiaries shall not be deemed to be any such sale, transfer, lease, conveyance or disposition) in one transaction or series of more related transactions transactions, to another Person, unless:
a(i) either: (A) the Company shall be is the surviving corporation; or (B) the Person (the “Surviving Person”) formed by or the Surviving Person surviving any such consolidation, amalgamation or merger or resulting from such conversion (if other than the Company) formed by such merger or consolidation or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is made shall be a corporation or corporation, limited liability company or limited partnership organized and or existing under the laws of the United States of AmericaStates, any state thereof of the United States or the District of Columbia;
b(ii) the Surviving Person formed by or surviving any such conversion, consolidation, amalgamation or merger (if other than the Company) expressly assumesor the Person to which such sale, by supplemental indenture in form assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; provided that, executed and delivered unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by agreements reasonably satisfactory to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes outstanding, and the due and punctual performance and observance of all the covenants and conditions of the Indenture to be performed by the CompanyTrustee;
c(iii) immediately before and immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default shall have occurred and be continuing; andexists;
d(iv) the Company or the Person formed by or surviving any such Surviving Person shall deliverconsolidation, amalgamation or merger (if other than the Company), or cause to which such sale, assignment, transfer, conveyance or other disposition has been made:
(A) would have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction;
(B) 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 delivered, permitted to incur at least $1.00 of additional Indebtedness pursuant to the TrusteeFixed Charge Coverage Ratio test set forth in Section 10.11(a) of this Indenture; or
(C) 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, have a Fixed Charge Coverage Ratio that is not less than the Fixed Charged Coverage Ratio of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(v) the Company has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such transaction consolidation, amalgamation, merger, conveyance, sale, transfer or lease and the such supplemental indenture, if any, in respect thereto comply with this Section 4.01 Article Eight and that all conditions precedent in the Indenture herein provided for relating to such transaction have been complied with.
(b) For purposes of this Section 8.1, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more 34 Seventh Supplemental Indenture 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.
(c) Notwithstanding the restrictions described in the foregoing clause (a)(iv), any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to another Restricted Subsidiary.
Appears in 1 contract
Samples: Seventh Supplemental Indenture (Plains Exploration & Production Co)
Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: The Company shall will not consolidate or merge or consolidate with or into any other Person (other than a merger of a wholly owned Subsidiary of whether or not the Company into is the Company) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided thatproperties or assets, for in one or more related transactions, to another Person, and the avoidance Company may not permit any of doubtits Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions would, in the aggregate, result in a pledge sale, assignment, transfer, lease, conveyance, or other disposition of all or substantially all of the properties or assets pursuant to any secured debt instrument of the Company to another Person unless (i) the Company is the surviving corporation or its Subsidiaries shall not be deemed to be 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 disposition) in one transaction or series of related transactions unless:
a) the Company other disposition shall be the surviving Person have been made (the “"Surviving Person”Entity") or the Surviving Person (if other than the Company) formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall be a corporation organized or limited liability company organized and existing under the laws of the United States of AmericaStates, any state thereof or the District of Columbia;
b; (ii) the Surviving Person Entity (if other than the CompanyCompany is not the continuing obligor under this Indenture) expressly assumes, by 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, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes outstanding, and the due and punctual performance and observance of all the covenants and conditions of the Indenture to be performed by the Company;
c; (iii) immediately before and after giving effect to such transaction or series of transactions no Default or Event of Default exists; (iv) immediately after giving effect to such transaction or series of related transactions on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company or any of its Subsidiary which becomes the obligation of the Company or any of its Subsidiary as a result of such transaction or series of transactions as having been incurred at the time of such transaction or series of transactions), no Default the Consolidated Net Worth of the Company and its Subsidiaries or Event the Surviving Entity (if the Company is not the continuing obligor under this Indenture) is equal to or greater than the Consolidated Net Worth of Default shall have occurred the Company and be continuing; and
dits Subsidiaries immediately prior to such transaction or series of transactions and (v) the Company or Surviving Entity (if the Company is not the continuing obligor under this Indenture) will, at the time of such Surviving Person shall delivertransaction or series of transactions and after giving pro forma effect thereto as if such transaction or series of transactions had occurred at the beginning of the applicable four-quarter period, or cause be permitted to be delivered, incur at least $1.00 of additional Indebtedness pursuant to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this Section 4.01 and that all conditions precedent test set forth in the Indenture relating first paragraph of Section 4.9 hereof. Notwithstanding the restrictions described in the foregoing clauses (iv) and (v), any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to such transaction have been complied the Company, and any Wholly Owned Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to another Wholly Owned Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Cumulus Media Inc)
Merger, Consolidation or Sale of Substantially All Assets. Solely with respect to the Notes: The Company shall not consolidate or merge or consolidate with or into any other Person (other than a merger of a wholly owned Subsidiary of whether or not the Company into is the Company) surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided thatproperties or assets, for in one or more related transactions, to another Person, and the avoidance Company may not permit any of doubtits Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions would, in the aggregate, result in a pledge sale, assignment, transfer, lease, conveyance, or other disposition of all or substantially all of the properties or assets pursuant to any secured debt instrument of the Company to another Person unless (i) the Company is the surviving corporation or its Subsidiaries shall not be deemed to be 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 disposition) in one transaction or series of related transactions unless:
a) the Company other disposition shall be the surviving Person have been made (the “"Surviving Person”Entity") or the Surviving Person (if other than the Company) formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall be a corporation organized or limited liability company organized and existing under the laws of the United States of AmericaStates, any state thereof or the District of Columbia;
b; (ii) the Surviving Person Entity (if other than the CompanyCompany is not the continuing obligor under this Indenture) expressly assumes, by assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes outstanding, and the due and punctual performance and observance of all the covenants and conditions of the Indenture to be performed by the Company;
c; (iii) immediately before and after giving effect to such transaction or series of transactions no Default or Event of Default exists; (iv) immediately after giving effect to such transaction or series of related transactions on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company and its Subsidiaries which becomes the obligation of the Company or any of its Subsidiaries as a result of such transaction as having been incurred at the time of such transaction or series of transactions), no Default the Consolidated Net Worth of the Company and its Subsidiaries or Event the Surviving Entity (if the Company is not the continuing obligor under this Indenture) is equal to or greater than the Consolidated Net Worth of Default the Company and its Subsidiaries immediately prior to such transaction or series of transactions; (v) each Subsidiary Guarantor, if any, unless it is the other party to the transactions described above, shall have occurred by supplemental indenture confirmed that its Subsidiary Guarantee, if any, shall apply to such Person's obligations under this Indenture and be continuingthe Securities; and
d(vi) the Company or Surviving Entity (if the Company is not the continuing obligor under this Indenture) will, at the time of such Surviving Person shall delivertransaction or series of transactions and after giving pro forma effect thereto as if such transaction or series of transactions had occurred at the beginning of the applicable four-quarter period, or cause be permitted to be delivered, incur at least $1.00 of additional Indebtedness pursuant to the Trustee, test set forth in the first paragraph of Section 4.7 hereof; and (vii) the Company will have delivered to the Trustee an Officer’s 's Certificate and an Opinion of Counsel, each stating to the effect that such transaction consolidation, merger or transfer and the such supplemental indenture, indenture (if any, in respect thereto ) comply with the Indenture; provided that (x) in giving such opinion such counsel may rely on such Officer's Certificate as to any matters of fact (including without limitation as to compliance with the foregoing clauses (iii), (iv) and (v), and (y) no Opinion of Counsel will be required for a consolidation, merger or transfer described in the last paragraph of this Section 4.01 5.1; provided, however that the requirements of clause (iv) and that all conditions precedent in (vi) above shall not apply with respect to a merger of the Indenture relating to such transaction have been complied with.Company with and into a Wholly Owned Restricted Subsidiary, a
Appears in 1 contract
Samples: Indenture (Energy Corp of America)