Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to: (i) (A) pay dividends or make any other distributions to any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party; (ii) make loans or advances to any Credit Party; or (iii) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary. (b) The restrictions in Section 9.08(a) shall not apply to encumbrances or restrictions existing under or by reason of: (i) applicable Requirements of Law; (ii) this Agreement and the other Credit Documents; (iii) contractual encumbrances existing on the Second Restatement Effective Date; (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired; (v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired; (vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary; (vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04. (viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture; (ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; (xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary; (xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due; (xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements; (xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary; (xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business; (xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and (xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or (xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Aa) pay dividends or make any other distributions to any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits profits, owned by, or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;
to, the Company or its Restricted Subsidiaries, (iib) make loans or advances to any Credit Party; or
the Company or its Restricted Subsidiaries, (iiic) sell, lease or transfer any of its properties or assets to the Company or its Restricted Subsidiaries or (d) guarantee any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Indebtedness of the Company, except for such encumbrances or restrictions existing under or by reason of:
: (i) applicable Requirements of Law;
law; (ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of any instrument governing Acquired Indebtedness permitted to be incurred under Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)5.14, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties or assets of any Person, other than the Person so acquired and its Subsidiariesacquired, or the property or assets of the Person so acquired and or its Subsidiaries or consolidated Subsidiaries; (iii) any restrictions existing under agreements in effect on the property or assets so acquired;
date of this Indenture; (viiv) contracts for the sale of assets, including customary any restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
; (v) any agreement governing Indebtedness restricting the sale or other disposition of property securing such Indebtedness if such agreement does not expressly restrict the ability of a Restricted Subsidiary to pay dividends or to make distributions, loans or advances; (vi) customary restrictions in leases relating to property covered thereby; or (vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04this Indenture.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall GST will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock of such Restricted Subsidiary owned by GST or with respect to any other interest or participation inRestricted Subsidiary, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (Bii) pay any Indebtedness owed to GST or any Credit Party;
other Restricted Subsidiary, (iiiii) make loans or advances to GST or any Credit Party; or
other Restricted Subsidiary or (iiiiv) sell, lease or transfer any of its properties property or assets to the Company GST or any other Restricted Subsidiary.. The foregoing provisions shall not restrict any encumbrances or restrictions:
(bi) The existing on the Closing Date in this Indenture or any other agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; PROVIDED that the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on with respect to any Person or the property so acquired;
(v) any agreement or other instrument assets of a such Person acquired by or merged or consolidated with or into the Company GST or any Restricted Subsidiary in existence Subsidiary, existing at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, and not created incurred in contemplation thereof), which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the any Person so acquired and its Subsidiaries other than such Person or the property or assets of such Person so acquired;
(viiv) contracts for in the sale case of assetsclause (iv) of the first paragraph of this Section 4.05, including (A) that restrict in a customary restrictions manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of GST or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of GST or any Restricted Subsidiary in any manner material to GST or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreementsassets of, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xivi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary any Development Company, imposed pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions Indebtedness Incurred by such Development Company to finance at least 50% of the type referred total financing required for the development and construction of all of such Development Company's alternative access networks or any Indebtedness Incurred to in clauses refinance or replace such Indebtedness; PROVIDED that (i)a) such Indebtedness (including such refinancing Indebtedness) is permitted to be Incurred under Section 4.03, (iib) such encumbrances and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, restrictions are no more restrictive in any material respect than those encumbrances and restrictions existing under the Tomen Facility as in effect on the Closing Date and (c) such encumbrances and restrictions shall only apply to such Development Company for so long as such Indebtedness (or such refinancing Indebtedness) remains outstanding; or
(vii) with respect to any Development Company (a "RESTRICTED DEVELOPMENT COMPANY"), imposed pursuant to or in connection with any Indebtedness Incurred by another Development Company to finance at least 50% of the total financing required for the development and construction of all of such encumbrance other Development Company's alternative access networks or any Indebtedness Incurred to refinance or replace such Indebtedness; PROVIDED that (a) such encumbrances and other restrictions taken as a whole shall not apply to such Restricted Development Company prior to the occurrence of an event of default under such Indebtedness (or refinancing Indebtedness), (b) such Indebtedness (including such refinancing Indebtedness) is permitted to be Incurred under Section 4.03, (c) such encumbrances and restrictions are no more restrictive in any material respect than those prior contemplated by the Tomen Facility as in effect on the Closing Date and (d) at least 50% of the total financing required for the development and construction of all of such Restricted Development Company's alternative access networks was provided by the holder of the Indebtedness of such other Development Company. The Company will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to such amendmentexist or become effective any of the matters referred to in the first paragraph of this section. Nothing contained in this Section 4.05 shall prevent GST or any Restricted Subsidiary from (1) creating, modificationincurring, restatement, renewal, increase, supplement, refunding, replacement assuming or refinancingsuffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of GST or any of its Restricted Subsidiaries that secure Indebtedness of GST or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (GST Telecommunications Inc), Indenture (GST Telecommunications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any other interest Person or participation in, the property or measured by, its profits or owned assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) pay existing by virtue of any Indebtedness owed transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Credit Party;
(ii) make loans Indebtedness, and that do not, individually or advances to any Credit Party; or
(iii) sellin the aggregate, lease or transfer any detract from the value of its properties property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;; or
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions . Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.05 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 2 contracts
Sources: Senior Discount Notes Indenture (Orionnet Finance Corp), Senior Notes Indenture (Orionnet Finance Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company, except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw or any rule, regulation or order;
(iib) the New Senior Notes Indenture, this Agreement Indenture, the New Senior Notes and the other Credit Documentsrelated guarantees, and the Existing Notes and Guarantees;
(iiic) contractual encumbrances existing customary non-assignment provisions or restrictions on cash or other deposits and net worth covenants contained in any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements or instruments existing on the sale of assetsIssue Date to the extent and in the manner such agreements are in effect on the Issue Date, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiarythis Indenture;
(viif) Indebtedness and Liens otherwise the Credit Agreement;
(g) an agreement governing Guarantor Senior Debt permitted to be incurred pursuant under this Indenture (other than Guarantor Senior Debt under, or with respect to, the Credit Agreement); provided that, with respect to Section 9.01 any agreement governing such Guarantor Senior Debt, the provisions relating to such encumbrance or restriction are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in its reasonable and Section 9.04.good faith judgment than the provisions contained in the Credit Agreement as in effect on the Issue Date;
(viiih) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(i) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(j) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvik) restrictions arising in connection with cash or other deposits Indebtedness of Restricted Subsidiaries that are not Guarantors permitted to be incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 9.011014 hereof; andprovided, however, that the Board of Directors of the Company determines in good faith at the time such dividend and other payment restrictions are created that such dividend and other payment restrictions do not materially adversely affect the Company's ability to pay principal of, and interest on, the Notes;
(xviil) restrictions on cash or other deposits or net worth imposed by purchase money obligations (iincluding any Capitalized Lease Obligations) customers, lenders or suppliers or (ii) other third parties under contracts entered into relating to property acquired in the ordinary course of business or arising in connection with any Permitted business;
(m) Liens securing Indebtedness otherwise permitted to be incurred under Section 1008 hereof (including clauses (1) through (10) of Section 1008 hereof) that limit the right of the debtor to dispose of the assets subject to such Liens; orand
(xviiin) any encumbrances an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or restrictions of the type incurred pursuant to an agreement referred to in clauses (ib), (iid), (e) and (iiig) through (m) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are not in the aggregate materially less favorable to the Company as determined by the Board of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings Directors of the contracts, instruments Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or obligations restriction contained in agreements referred to in such clauses (ib), (d), (e) and (g) through (xvii) of this Section 9.08(bm); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Dole Food Co Inc), Second Supplemental Indenture (Dole Food Company Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in paragraph (b) below, the Issuer will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock to the Issuer or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to the Issuer or any Credit Partyother Restricted Subsidiary;
(ii2) make loans or advances to the Issuer or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(aParagraph (a) shall above will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawlaw;
(ii2) this Agreement and the other Credit DocumentsIndenture;
(iii3) contractual any encumbrances existing or restrictions in effect as of the Issue Date and any encumbrances or restrictions contained in extensions, refinancings, renewals or replacements of any Indebtedness outstanding on the Second Restatement Effective Issue Date that are not materially more restrictive than those in existence on the Issue Date;
(iv4) purchase money obligations for property acquired customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in the ordinary course any lease governing a leasehold interest of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof any Restricted Subsidiary, or any customary restriction on the property so acquiredability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under the Indenture;
(v5) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed governing Acquired Indebtedness not Incurred in connection with with, or in anticipation or contemplation of, the acquisition of assets from such Person (butrelevant acquisition, in any such case, not created in contemplation thereof)merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi6) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company Issuer imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such SubsidiaryRestricted Subsidiary being sold;
(vii7) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii8) arising in connection with the Incurrence of Indebtedness of a Note Guarantor after the Issue Date; provided, that such encumbrances or restrictions (i) relate solely to such Note Guarantor, are required in order to effect such financing and are not more restrictive on the ability of such Note Guarantor to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted and (ii) the proposed encumbrances or restrictions, taken together with other encumbrances or restrictions on the payments, distributions, loans, advances or transfers referred to above in effect with respect to Restricted Subsidiaries, do not prevent the Restricted Subsidiaries of the Issuer from making distributions to the Issuer sufficient to pay amounts payable in respect of its Indebtedness due during the 12 month period immediately following the Incurrence of such Indebtedness;
(9) arising in connection with the Incurrence of Indebtedness by a Permitted Joint Venture after the Issue Date, provided, that such encumbrances or restrictions are required in order to effect such financing and are not more restrictive on the ability of the applicable Permitted Joint Venture to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted; or
(10) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business consistent with past practice. Nothing contained in this Section 3.12 shall prevent the Issuer or arising in connection with any Permitted Liens; or
Restricted Subsidiary from (xviii1) creating, incurring, assuming or suffering to exist any encumbrances Liens otherwise permitted by Section 3.13 or restrictions (2) restricting the sale or other disposition of property or assets of the type referred to in clauses (i), (ii) and (iii) Issuer or any of its Restricted Subsidiaries that secure Indebtedness provided such restriction is otherwise permitted by Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing3.13.
Appears in 2 contracts
Sources: Indenture (Vitro Sa De Cv), Indenture (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company From and after the Effective Date, so long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Borrower to:
(i) (A) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii) make loans or advances to the Borrower or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(iii) sell, lease or transfer any of its properties property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Borrower, except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw, rule, regulation or order;
(iiB) this Agreement and the other Credit Documentsor any Guarantee or any Take-Out Securities or any guarantee in respect thereof;
(iiiC) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease, license or sublicense governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateBorrower;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vD) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viE) contracts for agreements existing on the sale of assetsEffective Date to the extent and in the manner such agreements are in effect on the Effective Date;
(F) the Existing Credit Agreement, including customary restrictions an agreement governing other Pari Passu Indebtedness permitted to be incurred hereunder or, with respect to a Subsidiary Restricted Subsidiary, an agreement evidencing Indebtedness incurred not in violation of this Agreement; provided that, with respect to any agreement governing such other Pari Passu Indebtedness or other Indebtedness, as the case may be, the provisions relating to such encumbrance or restriction are no less favorable to the Borrower or Restricted Subsidiary, as the case may be, in any material respect as determined by the Board of Directors of the Company pursuant Borrower in its reasonable and good faith judgment than the provisions contained in the Existing Credit Agreement, in the case of such other Pari Passu Indebtedness, and the agreements of such Restricted Subsidiary, in the case of such other Indebtedness, in each case as in effect on the Effective Date;
(G) restrictions on the transfer of assets subject to an any Lien permitted under this Agreement imposed by the holder of such Lien;
(H) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Agreement to any Person pending the closing of such sale;
(I) such encumbrances or restrictions being binding on a Restricted Subsidiary at such time as such Restricted Subsidiary first becomes a Restricted Subsidiary; provided that has been such encumbrances or restrictions are not entered into for the sale or disposition of all or substantially all of the Capital Stock or assets solely in contemplation of such Person becoming a Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viiiJ) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint ventureventure or similar entity or the equity interests therein) entered into in the ordinary course of business;
(ixK) any amendment to or Refinancing of the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (B), (D), (E) and (F) above; provided that the provisions relating to such encumbrance or restriction contained in any such agreement, taken as a whole, are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (B), (D), (E) and (F);
(L) customary provisions contained in contracts, restrictions on leases, sub-leasessubleases, licenses, sub-licenses sublicenses or similar agreementsasset sale agreements otherwise permitted hereby;
(M) restrictions imposed on cash or other deposits or net worth imposed by customers or required by insurance, including with respect to intellectual property and other agreementssurety or bonding companies, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xviiN) encumbrances and restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions applicable only to Restricted Subsidiaries of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided Borrower that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingare not Domestic Restricted Subsidiaries.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Equinix Inc), Bridge Credit Agreement (Equinix Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (Aa) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock Stock, or with respect to any other interest or participation in, or measured by, its profits or owned by profits, to the Company or any of its Restricted Subsidiary Securities or (B) pay any Indebtedness owed to the Company or any Credit Partyof its Restricted Subsidiaries;
(iib) make loans or advances or pay any Indebtedness or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary of the Company; or
(iiic) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawlaw;
(ii2) this Agreement Indenture, the Notes, any Additional Notes and the other Credit DocumentsCollateral Agreements;
(iii3) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi5) contracts for agreements existing on the sale of assetsIssue Date to the extent and in the manner such agreements are in effect on the Issue Date, including customary restrictions the Credit Agreement, the Intercreditor Agreement and the indenture governing the 9% Coinmach Corp. Notes;
(6) an agreement (i) governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (4) or (5) above and (ii) governing any other Indebtedness of the Company or any Restricted Subsidiary permitted to be incurred under this Indenture; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (2), (4) or (5);
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii9) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii10) any encumbrances or customary restrictions on the transfer of the type referred assets subject to in clauses (i), (ii) and (iii) of Section 9.08(a) a Permitted Lien imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings the holder of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingLiens.
Appears in 2 contracts
Sources: Indenture (Coinmach Service Corp), Indenture (Coinmach Laundry Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to the Company or any Credit Party other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or profits;
(Bii) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary;
(iiiii) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iiiiv) sell, lease or transfer any of its properties or assets Property to the Company or any other Restricted Subsidiary.
(b) The restrictions in Notwithstanding clause (a) of this Section 9.08(a) shall not apply 4.16, the Company may, and may permit any Restricted Subsidiary to, directly or indirectly, create or otherwise suffer to exist or become effective such encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Lawagreements in effect on the Issue Date;
(ii) this Agreement and the other Credit Documentsapplicable law, including rules, regulations or orders issued by any Gaming Authority;
(iii) contractual encumbrances existing on customary non-assignment provisions in contracts, leases or licenses entered into in the Second Restatement Effective Dateordinary course of business;
(iv) purchase money obligations for property agreements in existence with respect to a Restricted Subsidiary at the time it is acquired or so designated; provided, however, that such agreements are not entered into in the ordinary course anticipation or contemplation of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredsuch designation;
(v) any agreement or other instrument of a Person whose property, assets or Capital Stock is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary which agreement or other instrument was in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which ; provided that such encumbrance or restriction is not, and will not be, applicable to any Person, or the properties or assets of any Person, other than the such acquired Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the such property or assets assets, including directly-related assets, such as accessions and proceeds so acquiredacquired or leased;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property Property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), agreements; which limitation is applicable only to the assets that are the subject of such agreements;
(xivvii) customary provisions restricting subletting any restrictions or assignment transfer of any lease governing any leasehold interest property with respect to the transfer of assets secured by a Lien permitted to be Incurred pursuant to Section 4.14;
(viii) purchase money obligations for Property or equipment acquired for use in the business of the Company or any of its Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by Subsidiaries and Capital Lease Obligations that impose restrictions on the Company Property or any Restricted Subsidiary equipment purchased or leased in the ordinary course of business;
(xviix) restrictions arising in connection with cash any instrument governing Indebtedness represented by industrial revenue or other deposits permitted pursuant to Section 9.01; anddevelopment bonds issued by a municipality and guaranteed by the Company or any of its Restricted Subsidiaries;
(xviix) restrictions customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business;
(xi) any restriction on cash or other deposits or net worth imposed by (i) customerscustomers or lessors or required by insurance, lenders surety or suppliers or (ii) other third parties bonding companies, in each case under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liensbusiness; or
(xviiixii) any encumbrances or restrictions of the type referred to in clauses (i), a)(i) through (ii) and (iiiiv) of this Section 9.08(a) 4.16 imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (ib)(i) through (xviixi) of this Section 9.08(b)4.16; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance dividend and other payment restrictions taken as a whole than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(c) For purposes of determining compliance with this Section (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or make other distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to pay indebtedness owed or to make loans or advances.
(d) Nothing contained in this Section 4.16 shall prevent the Company or any Restricted Subsidiary from granting any Lien permitted under Section 4.14.
Appears in 2 contracts
Sources: Indenture (Boyd Acquisition I, LLC), Indenture (Boyd Gaming Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Aa) pay dividends or make any other distributions to the Company or any Credit Party of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits profits, or owned by (b) pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;
Subsidiaries, (ii) make loans or advances to the Company or any Credit Party; or
of its Restricted Subsidiaries or (iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions Subsidiaries, in Section 9.08(a) shall not apply to each case except for such encumbrances or restrictions existing under or by reason of:
of (ia) applicable Requirements of Law;
(ii) this Agreement Existing Indebtedness and the other Credit Documents;
Agreement (iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b)thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements replacement or refinancings areare not materially more restrictive, in the good faith judgment of the Companytaken as a whole, no more restrictive in any material respect with respect to such encumbrance dividend and other payment restrictions than those contained in the agreement related to the Existing Indebtedness or the Credit Agreement, as applicable), (b) the Notes, any Guarantee thereof and this Indenture, (c) applicable law, rule, regulation or order (d) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries, as in effect at the time of such acquisition (except to the extent such agreement was entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the Equity Interests, properties or assets of any Person, other than the Person, or the Equity Interests, property or assets of the Person, so acquired; provided that, in the case of any agreement in respect of Indebtedness, such Indebtedness was permitted by this Indenture, (e) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business, (f) Purchase Money Obligations and Capital Lease Obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (iii) above on the property so acquired or proceeds therefrom, (g) customary restrictions in asset or stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or stock pending the closing of such sale or subject to the joint venture, (h) customary nonassignment provisions or restrictions on cash or other deposits or net worth in contracts entered into in the ordinary course of business; (i) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive than those contained in the agreements governing the Indebtedness being refinanced; (j) secured debt otherwise permitted to be Incurred pursuant to the covenants described under Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the assets securing such Indebtedness; (k) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company that is incurred subsequent to the Closing Date pursuant to Section 4.09 so long as such encumbrance or restrictions contained in any agreement or instrument will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Company); (l) any Restricted Investment not prohibited by the covenants described under Section 4.10 and any Permitted Investment; or (m) in the case of clause (iii) above, arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in any manner material to the Company and its Restricted Subsidiaries taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingwhole.
Appears in 2 contracts
Sources: Indenture (Playa Hotels & Resorts N.V.), Indenture (Playa Hotels & Resorts B.V.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in paragraph (b) of this Section 4.09, the Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on its Capital Stock (or with respect to any other interest or participation in, or measured by, its profits or owned by profits) to the Company or any of its Restricted Subsidiary Subsidiaries or (B) pay any Indebtedness liabilities owed to the Company or any Credit Partyof its Restricted Subsidiaries;
(ii2) make loans or advances to the Company or any Credit Partyof its Restricted Subsidiaries; or
(iii3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiarySubsidiaries.
(b) The restrictions in Section 9.08(aprovisions of 4.09(a) shall do not apply to any encumbrances or restrictions existing under or by reason ofof or with respect to:
(i1) applicable Requirements of Law;
(ii) this Agreement and the Revolving Credit Agreement, the Term Loan Agreement, Existing Indebtedness or any other Credit Documents;
(iii) contractual encumbrances existing agreements as in effect on the Second Restatement Effective Issue Date;
(iv2) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredapplicable law, rule, regulation or order;
(v3) any agreement Person or other instrument the property or assets of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary in existence Subsidiaries existing at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed and not incurred in connection with the acquisition of assets from such Person (but, in any such case, not created or in contemplation thereof)of such acquisition, which encumbrance or restriction is not applicable to any Person, Person or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi4) contracts for in the sale case of assetsclause (a)(3) of this Section 4.09:
(a) provisions that restrict in a customary manner the subletting, including assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset;
(b) restrictions existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(c) restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5) customary restrictions provisions with respect to a Subsidiary the disposition or distribution of the Company pursuant to an assets or property in joint venture agreements and other agreements;
(6) any agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock capital stock of, or property and assets of of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending such Subsidiarysale or other disposition;
(vii7) Indebtedness and Liens otherwise of a Foreign Subsidiary permitted to be incurred pursuant under this Indenture; provided that (a) such encumbrances or restrictions are ordinary and customary with respect to Section 9.01 the type of Indebtedness being incurred and Section 9.04.
(viiib) customary provisions such encumbrances or restrictions will not materially (in joint venture agreements good faith by the Board of Directors of the Company) impair the Company’s ability to make principal and other similar agreements or arrangements relating solely to such joint ventureinterest payments on the Notes;
(ix8) this Indenture, the Notes, the Exchange Notes, any Additional Notes or the Guarantees;
(9) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses restrictions on cash or similar agreements, including with respect to intellectual property and other agreements, in each case, deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(x10) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries permitted to be incurred after the Issue Date pursuant to Section 4.06; provided that such restrictions will not materially (in the good faith judgment of the Board of Directors of the Company) impair the Company’s ability to make principal and interest payments on the Notes;
(11) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale purchase or other agreement to which the Company or any of its Restricted Subsidiary Subsidiaries is a party and entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary;
(xi12) any instrument governing any Indebtedness or Capital Stock of a Person that is an Unrestricted Subsidiary as in effect on the date that such Person becomes a Restricted Subsidiary, which encumbrance or restriction with respect is not applicable to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to any Person, or by reason the properties or assets of an agreement that such Subsidiary is a party to or entered into before any Person, other than the date on which such Subsidiary Person who became a Restricted Subsidiary; provided that such agreement , or the property or assets of the Person who became a Restricted Subsidiary and was not entered into in anticipation contemplation of an Unrestricted the designation of such Subsidiary becoming as a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment case of Indebtedness, the Company, incurrence of such incurrence will not materially impair any Credit Party's ability to make payments under Indebtedness as a result of such Person becoming a Restricted Subsidiary was permitted by the Obligations when dueterms of this Indenture;
(xiii13) provisions limiting the disposition or distribution of assets or purchase money obligations for property in asset sale agreements, sale-leaseback agreements, stock sale agreements acquired and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into Capital Lease Obligations in the ordinary course of business or arising that impose restrictions of the nature discussed in connection with any Permitted Liensclause (a)(3) above, on the property so acquired; orand
(xviii14) any encumbrances or restrictions of the type referred to in clauses (i1), (ii2) and (iii3) of Section 9.08(a4.09(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii13) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no not materially more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.09, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (SB/RH Holdings, LLC), Indenture (SB/RH Holdings, LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary:
(a) on its Capital Stock or Stock; or
(b) with respect to any other interest or participation in, or measured by, its profits profits;
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartySubsidiary;
(ii3) make loans or advances or capital contributions to the Company or any Credit PartyRestricted Subsidiary; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to ; except for such encumbrances or restrictions existing under or by reason of:
(i5) applicable Requirements of Lawthe Senior Credit Facility;
(ii6) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date and any amendments, restatements, renewals, replacements or refinancings thereof; provided that any amendment, restatement, renewal, replacement or refinancing is not more disadvantageous to the Holders in any material respect with respect to such encumbrances or restrictions existing on the Issue Date;
(iv7) purchase money obligations for property acquired in this Indenture, the ordinary course of business Notes and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredGuarantees;
(v8) applicable law;
(9) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
(vi10) contracts for customary non-assignment provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness and consistent with past practices;
(11) Refinancing Indebtedness; provided that such restrictions are no more restrictive than those contained in the agreements governing the Indebtedness being refunded, including refinanced or extended;
(12) customary restrictions in security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(13) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv14) customary provisions restricting subletting restrictions imposed on the transfer of copyrighted or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Lienspatented materials; or
(xviii15) any encumbrances or customary restrictions of under Sale and Lease-Back Transactions that apply to the type referred to in clauses (i), (ii) assets being transferred only and (iii) of that comply with Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing4.15.
Appears in 2 contracts
Sources: Indenture (Affinity Group Holding, Inc.), Indenture (Affinity Group Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party toSubsidiary:
(i1) (A) to pay dividends (in cash or otherwise) or make any other distributions to any Credit Party on in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or (B) pay any Indebtedness Debt or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii2) to make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or otherwise to transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The Notwithstanding the restrictions in Section 9.08(a) shall not apply 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions existing under or by reason ofrestriction:
(i1) applicable Requirements of Lawpursuant to any agreement in effect on the Issue Date (including the Senior Credit Facilities);
(ii2) pursuant to this Agreement Indenture, the Notes and the other Credit DocumentsSubsidiary Guarantees;
(iii3) contractual encumbrances pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Second Restatement Effective DateIssue Date or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred in connection with, or anticipation of, becoming a Restricted Subsidiary; provided that the Incurrence of such Debt was permitted under Section 4.9;
(iv4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) customary restrictions in leases (including capital leases), subleases, licenses, sublicenses, security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii3) of Section 9.08(a) hereof on the property so acquired4.8(a);
(v7) any agreement or other instrument of a Person acquired by or merged or consolidated with or into Liens permitted to be incurred pursuant to Section 4.12 that limit the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets right of the Person so acquired and its Subsidiaries or debtor to dispose of the property or assets so acquiredsubject to such Liens;
(vi) contracts for the sale of assets, including customary restrictions 8) with respect to a Subsidiary of the Company Restricted Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(vii9) Indebtedness and Liens in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be incurred Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to Section 9.01 and Section 9.04.agreements in effect on the Issue Date or those contained in this Indenture or the Senior Credit Facilities, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(viii11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries;
(12) if such encumbrance or restriction is the result of applicable laws or regulations;
(13) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x14) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale on cash or other agreement to which the Company or any Restricted Subsidiary is a party deposits imposed by customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;or
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv15) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Indenture (Cars.com Inc.), Indenture (Switch, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (ii) existing under or by reason of applicable law; (iii) existing with respect to any other interest Person or participation in, the property or measured by, its profits or owned assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the first paragraph of this Section 4.05 (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) pay existing by virtue of any Indebtedness owed transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Credit Party;
(ii) make loans Indebtedness, and that do not, individually or advances to any Credit Party; or
(iii) sellin the aggregate, lease or transfer any detract from the value of its properties property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
; (v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (vi) contained in the terms of such Subsidiary;
(vii) any Indebtedness and Liens otherwise permitted to be incurred or any agreement pursuant to Section 9.01 and Section 9.04.
which such Indebtedness was issued if (viiiA) customary provisions the encumbrance or restriction applies only in joint venture agreements and other similar agreements the event of a payment default or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including a default with respect to intellectual property and other agreements, a financial covenant contained in each case, entered into such Indebtedness or agreement; provided that in the ordinary course case of business
the Credit Agreement the encumbrance or restriction may apply if an event of default (xother than an event of default resulting solely from the breach of a representation or warranty) restrictions occurs and is continuing under the Credit Agreement; provided that, with respect to any event of default (other than a payment default, a bankruptcy event with respect to the Company or conditions the loss of a material license or fiber network) under the Credit Agreement, such encumbrance or restriction may not prohibit dividends to the Company to pay scheduled interest on the Notes for more than 180 days in any consecutive 360-day period, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company) and (C) the Company determines (as evidenced by a resolution of the Board of Directors) that any such encumbrance or restriction is not reasonably expected to materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.05 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Sources: Indenture (Knology Holdings Inc /Ga)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party (other than the Guarantors and the Co-Issuer) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party (other than the Guarantors and the Co-Issuer) to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on its Capital Stock (or with respect to any other interest or participation in, or measured by, its profits or owned by profits) to the Company Company, the Co-Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(B2) pay any Indebtedness liabilities owed to the Company, the Co-Issuer or any Credit PartyRestricted Subsidiary;
(ii3) make loans or advances to the Company, the Co-Issuer or any Credit PartyRestricted Subsidiary (it being understood that the subordination of loans or advances made to the Company, the Co-Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company, the Co-Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(iii4) sell, lease or transfer any of its properties or assets to the Company Company, the Co-Issuer or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.10(a) shall will not apply to encumbrances or restrictions existing under or under, by reason ofof or with respect to:
(i1) applicable Requirements of Law;
(ii) this Agreement and the Existing Indebtedness or any other Credit Documents;
(iii) contractual encumbrances existing agreements in effect on the Second Restatement Effective Issue Date and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, taken as a whole, are not, as determined by the Company or a direct or indirect parent of the Company in good faith, materially more restrictive than those contained in the Existing Indebtedness or such other agreements, as the case may be, as in effect on the Issue Date;
(iv2) purchase money obligations for property acquired in this Indenture, the ordinary course of business Notes, the Note Guarantees, the Security Documents, the Intercreditor Agreement and Financing Lease Obligations that impose restrictions of other documents relating to this Indenture, the nature discussed in clause (iii) of Section 9.08(a) hereof on Notes, the property so acquiredNote Guarantees, the Security Documents or the Intercreditor Agreement;
(v3) applicable law, rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary that was in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi5) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(vii6) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii7) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) affect the Issuers’ ability to make anticipated principal or interest payment on the Notes in any material respect (in each case as determined by the Company or a direct or indirect parent of the Company in good faith);
(8) encumbrances or restrictions that restrict distributions or transfers by a Restricted Subsidiary if such restrictions exist under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, that Restricted Subsidiary and are pending such sale or other disposition;
(9) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent imposing restrictions of the type described in clause (4) of Section 4.10(a) on the property subject to such lease;
(10) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of businessbusiness and which the Board of Directors of the Company or a direct or indirect parent of the Company determines in good faith will not adversely affect the Issuers’ ability to make payments of principal or interest on the Notes;
(11) Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.06 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(12) any agreement or instrument relating to Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary permitted to be Incurred under this Indenture following the Issue Date if (A) the encumbrances or restrictions are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Company or a direct or indirect parent of the Company) and (B) either (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company determines that such encumbrance or any Restricted Subsidiary is restriction will not adversely affect the Issuers’ ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a party default in respect of a payment or financial maintenance covenant default in respect of such Indebtedness;
(13) customary provisions in (x) joint venture agreements entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction business with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent Equity Interests subject to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
joint venture and (xiiiy) provisions limiting the disposition operating or distribution of assets or property in asset sale other similar agreements, sale-leaseback agreements, stock asset sale agreements and other similar agreements (including stock sale agreements entered into in connection with a Restricted Investment)the entering into of such transaction, which limitation is applicable only to the assets that are the subject of such those agreements;
(xiv14) customary provisions restricting subletting purchase money obligations for property acquired, IRUs and Finance Lease Obligations in the ordinary course of business to the extent imposing restrictions on the property so acquired;
(15) any encumbrance or assignment restriction of any lease governing any leasehold interest a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary and its assets;
(16) other Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of Subsidiary that is Incurred subsequent to the Issue Date pursuant Section 4.03; provided that such encumbrances and restrictions contained in any agreement entered into or instrument will not materially affect the Issuers’ ability to make anticipated principal or interest payment on the Notes (as determined by the Company or any Restricted Subsidiary a direct or indirect parent of the Company in the ordinary course of businessgood faith);
(xvi17) Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions arising contained in connection with cash the agreements governing that Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced (as determined by the Company or other deposits a direct or indirect parent of the Company in good faith);
(18) Indebtedness of non-Guarantor Subsidiaries permitted to be Incurred pursuant to the provisions of Section 9.014.03; and
(xvii19) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company or a direct or indirect parent of the Company, no not materially more restrictive in any material respect as a whole with respect to such encumbrance and other encumbrances or restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in Section 4.06(b), the Operating Partnership will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company Operating Partnership or any of its Restricted Subsidiary or Subsidiaries,
(B2) pay any Indebtedness owed to the Operating Partnership or any Credit Party;other Restricted Subsidiary,
(ii3) make loans or advances to the Operating Partnership or any Credit Party; other Restricted Subsidiary, or
(iii4) sell, lease or transfer any of its properties property or assets to the Company Operating Partnership or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.10(a) shall not apply restrict any encumbrances or restrictions:
(1) existing on the Issue Date in the Indenture and any other agreement in effect on the Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted or not prohibited under the Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such assets);
(3) existing under or by reason of:
(i) of applicable Requirements of Lawlaw, the Indenture, the Notes and the Guarantees;
(ii4) this Agreement existing with respect to any Person, or the property or assets of such Person acquired by the Operating Partnership or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other Credit Documentsthan such Person or the property or assets of such Person so acquired;
(iii5) contractual encumbrances existing on in the Second Restatement Effective Datecase of Section 4.06(a)(4):
(A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset;
(ivB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Operating Partnership or any Restricted Subsidiary not otherwise prohibited by the Indenture;
(C) existing under or by reason of purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions on that property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company Operating Partnership or any Restricted Subsidiary in existence at any manner material to the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired Operating Partnership and its Subsidiaries, or the property or assets of the Person so acquired and its Restricted Subsidiaries or the property or assets so acquiredtaken as a whole;
(vi6) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such SubsidiaryRestricted Subsidiary (including a restriction on distributions by that Restricted Subsidiary pending its sale or other disposition);
(vii7) contained in the terms of any Indebtedness and Liens otherwise permitted to be incurred or any agreement pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided Indebtedness was issued if the Operating Partnership determines that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does will not extend materially affect such Persons’ ability to any assets make principal or property of interest payments on the Company or any other Restricted Subsidiary other than the assets and property of such SubsidiaryNotes;
(xii) other Indebtedness, Disqualified Stock 8) existing under or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment by reason of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business business;
(9) customary provisions contained in joint venture agreements entered into in the ordinary course of business;
(10) contained in any license, permit or arising other accreditation with a regulatory authority entered into in connection with any Permitted Liensthe ordinary course of business;
(11) contained in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis; or
(xviii12) any encumbrances in connection with and pursuant to permitted extensions, refinancings thereof, or as renewals or replacements of restrictions of the type referred imposed pursuant to in clauses (i), 1) through (ii) and (iii11) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b4.10(b); provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings are, in the good faith judgment of the Company, are no more restrictive less favorable in any material respect with respect to such encumbrance and other restrictions respect, taken as a whole whole, to the Holders than those prior to such amendmentencumbrances or restrictions that are then in effect and that are being extended, modificationrefinanced, restatement, renewal, increase, supplement, refunding, replacement renewed or refinancingreplaced.
(c) Nothing contained in this Section 4.06 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or its Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: First Supplemental Indenture (Dupont Fabros Technology, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in paragraph (b), the Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or Equity Interests of the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary;
(B2) pay any Indebtedness Debt or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary;
(ii3) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii4) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(aprovisions of paragraph (a) shall do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture or in any other agreements in effect on the Issue Date (including the 2020 Senior Unsecured Notes Indenture and the 2021 Senior Unsecured Notes Indenture), and any amendment, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing under or by reason ofof applicable law;
(3) existing:
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary; or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (i) are not applicable Requirements to any other Person or the property or assets of Lawany other Person and (ii) were not put in place in anticipation of such event and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(ii4) of the type described in clause (a)(4) of this Agreement and the other Credit Documents;
Section 4.09 arising or agreed to (iiii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions restrict in a customary manner the subletting, assignment or transfer of the nature discussed in clause any property or asset that is subject to a lease or license or (iiiii) by virtue of Section 9.08(a) hereof on the any Lien on, or agreement to transfer, option or similar right with respect to any property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into assets of, the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquiredSubsidiary;
(vi5) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such SubsidiaryRestricted Subsidiary that is permitted by Section 4.12;
(vii6) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.the requirements of any Securitization, Warehousing Facility, Funding Indebtedness with respect to any Securitization Entity, special purpose Subsidiary of the Company or any Restricted Subsidiary formed in connection therewith, in each case that are exclusively applicable to any Securitization Warehousing Facility, Funding Indebtedness or Financeable Assets of the Company or any Restricted Subsidiary formed in connection therewith or that are, in the good faith judgment of the Company, not reasonably expected to materially affect the Company’s ability to make principal or interest payments on the Notes;
(viii7) contained in an instrument governing or relating to Debt that is customary, based on general market conditions, and that are, in the good faith judgment of the Company’s senior management, not reasonably expected to materially affect the Company’s ability to make principal or interest payments on the Notes;
(8) required pursuant to this Indenture; or
(9) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreementsentity, including with respect to intellectual property and other agreements, in each case, its assets or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (UWM Holdings Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(ia) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by (2) repay any Debt or any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;Subsidiary,
(iib) make loans or advances or Capital Contributions to the Company or any Credit Party; Restricted Subsidiary, or
(iiic) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired Issue Date to the extent and in the ordinary course of business manner such encumbrances and Financing Lease Obligations that impose restrictions of the nature discussed are in clause (iii) of Section 9.08(a) hereof effect on the property so acquired;
Issue Date, (v2) encumbrances or restrictions in the Credit Facilities, (3) this Indenture, the Notes and any Guarantees, (4) applicable law, (5) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary governing Acquired Debt as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person (including any Subsidiary of the Person), so acquired acquired, (6) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and its Subsidiaries consistent with past practices, (7) Refinancing Debt; provided that such restrictions are not on the whole materially more restrictive than those contained in the agreements governing the Debt being extended, refinanced, renewed, replaced, defeased or refunded, (8) restrictions in security agreements or mortgages securing Debt of the Company or a Restricted Subsidiary only to the extent such restrictions restrict the transfer of the property or assets so acquired;
subject to such security agreements and mortgages, (vi9) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
Restricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the Capital Stock or assets to be sold or disposed of, (vii10) Indebtedness and Liens purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (c)(8) of this Section 10.12 on the property so acquired, (11)any agreement for the sale of assets (including any Asset Sale) that restricts transfers of such assets pending their sale, (12)secured Debt otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary the provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary covenant described above under Section 10.08 that are limits the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property right of the Company debt or such Restricted Subsidiary or to dispose of the assets or property of another Restricted Subsidiary;
securing such Debt, (xi13) any encumbrance or restriction with respect contained in Purchase Money Debt to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement the extent that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property (A) only restricts the transfer of the Company or any other Restricted Subsidiary other than the assets Property financed with such Purchase Money Debt and property of such Subsidiary;
(xiiB) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent solely relates to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided thatProperty financed with such Purchase Money Debt, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
or (xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii14) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingbusiness.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw, including restrictions imposed by applicable gaming laws or any applicable Gaming Authority;
(iib) the Notes, the Guarantees and this Agreement and the other Credit DocumentsIndenture;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, Subsidiaries or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements existing on the sale of assetsIssue Date to the extent and in the manner such agreements are in effect on the Issue Date, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryCredit Agreement;
(viif) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary the provisions in joint venture agreements and other similar of security or pledge agreements or arrangements relating solely to such joint venturemortgages (or similar agreements) granting a Permitted Lien or restricting transfers of the assets secured thereby;
(ixg) customary provisions contained in contractsFF&E Financing, leases, sub-leases, licenses, sub-licenses Purchase Money Indebtedness or similar agreements, including with respect to intellectual Capitalized Lease Obligations for property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into acquired in the ordinary course of business or arising that impose restrictions of the nature described in connection with any Permitted Liensclause (3) above on the property so acquired; or
(xviiih) any encumbrances an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or restrictions of the type incurred pursuant to an agreement referred to in clauses clause (ib), (iid), (e), (f) and or (iiig) of Section 9.08(a) imposed by above; provided, however, that the provisions relating to such encumbrance or restriction contained in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of such Indebtedness are not less favorable to the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive Company in any material respect with respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance and other restrictions taken as a whole than those prior or restriction contained in agreements referred to in such amendmentclause (b), modification(d), restatement(e), renewal, increase, supplement, refunding, replacement (f) or refinancing(g).
Appears in 1 contract
Sources: Indenture (Ameristar Casinos Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on its Capital Stock (or with respect to any other interest or participation in, or measured by, its profits profits) to the Company or owned any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) pay any liabilities owed to the Company or any of Restricted Subsidiary;
(3) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed shall not be deemed a restriction on the ability to any Credit Party;
(ii) make loans or advances to any Credit Partyadvances); or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.11(a) shall will not apply to encumbrances or restrictions:
(1) existing under, by reason of or with respect to the Existing Indebtedness or any other agreements in effect on the Issue Date and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, taken as a whole, are not, as determined by the Company in good faith, materially more restrictive than those contained in the agreements relating to Existing Indebtedness or such other agreements, as the case may be, as in effect on the Issue Date;
(2) set forth in this Indenture, the Notes and the Note Guarantees;
(3) existing under or by reason of:
(i) of applicable Requirements of Lawlaw, rule, regulation or order;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary which was in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi5) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(vii6) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii7) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) affect the Company’s ability to make anticipated principal or interest payment on the Notes in any material respect (in each case as determined by the Company in good faith);
(8) that restrict distributions or transfer by a Restricted Subsidiary if such restrictions exist under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, that Restricted Subsidiary and are pending such sale or other disposition;
(9) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent imposing restrictions of the type described in clause (4) of Section 4.11(a) on the property subject to such lease;
(10) arising from customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of businessbusiness and which the Board of Directors of the Company determines in good faith will not adversely affect the Company’s ability to make payments of principal or interest on the Notes;
(11) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.06 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(12) existing pursuant to any agreement or instrument relating to Indebtedness or Preferred Stock of a Restricted Subsidiary permitted to be Incurred under this Indenture following the Issue Date if (A) the encumbrances or restrictions are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Company) and (B) either (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company determines that such encumbrance or any Restricted Subsidiary is restriction will not adversely affect the Company’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a party default in respect of a payment or financial maintenance covenant default in respect of such Indebtedness;
(13) customary provisions in (x) joint venture agreements entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction business with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent Equity Interests subject to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided thatjoint venture and (y) operating or other similar agreements, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment)the entering into of such transaction, which limitation is applicable only to the assets that are the subject of such those agreements;
(xiv14) customary provisions restricting subletting encumbrance or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customersrestriction under purchase money obligations for property acquired, lenders or suppliers or (ii) other third parties under contracts entered into IRUs and Capitalized Lease Obligations in the ordinary course of business to the extent imposing restrictions on the property so acquired;
(15) any encumbrance or arising restriction of a Receivables Subsidiary effected in connection with any Permitted Liensa Qualified Receivables Financing; orprovided, however, that such restrictions apply only to such Receivables Subsidiary and its assets;
(xviii16) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company that is Incurred subsequent to the Issue Date pursuant Section 4.03, provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Company’s ability to make anticipated principal or interest payment on the Notes (as determined by the Company in good faith);
(17) existing under, by reason of or with respect to Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the agreements governing that Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(18) Indebtedness of Foreign Subsidiaries permitted to be Incurred pursuant to the provisions of Section 4.03; and
(19) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect as a whole with respect to such encumbrance and other encumbrances or restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Ai)(a) pay dividends or make any other distributions to the Company or any Credit Party of its Restricted Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (Bb) pay any Indebtedness owed to the Company or any Credit Party;
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or any Credit Party; or
of its Restricted Subsidiaries, (iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
Subsidiaries, (biv) The restrictions grant any Liens in Section 9.08(afavor of the Holders of the Notes and the Trustee or (v) shall not apply to guarantee the Notes or any renewals or refinancings thereof, except for such encumbrances or restrictions existing under or by reason of:
of (iA) Existing Indebtedness, (B) the Bank Credit Agreement, (C) applicable Requirements of Law;
law, (ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vD) any agreement instrument governing Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary Subsidiaries as in existence effect at the time of such acquisition or at (except to the time it merges with or into the Company or any Restricted Subsidiary or assumed extent such Indebtedness was Incurred in connection with the acquisition of assets from such Person (but, in any such case, not created or in contemplation thereofof such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
, provided that in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred, (viE) customary non-assignment provisions in leases, licenses, sales agreements or other contracts for (but excluding contracts related to the sale extension of assetscredit) entered into in the ordinary course of business and consistent with past practices, including customary (F) restrictions with respect imposed pursuant to a Subsidiary of the Company pursuant to an binding agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock Equity Interests or assets of any Restricted Subsidiary, provided such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating restrictions apply solely to such joint venture;
the Equity Interests or assets being sold, (ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(xG) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which imposed by Permitted Liens on the Company or any Restricted Subsidiary is a party entered into in the ordinary course transfer of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of to such agreements;
Liens, and (xivH) customary provisions restricting subletting Permitted Refinancing Indebtedness Incurred to refinance Existing Indebtedness or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions Indebtedness of the type referred to described in clauses clause (i)D) above, (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, the restrictions contained in the good faith judgment of the Company, agreements governing such Permitted Refinancing Indebtedness are no more restrictive in any material respect with respect to such encumbrance and other restrictions taken restrictive, as a whole whole, than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingcontained in the agreements governing the Indebtedness being refinanced.
Appears in 1 contract
Sources: Indenture (Highwaymaster Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Borrower shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Borrower to:
(i) (A) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii) make loans or advances or pay any Debt or other obligation owed to the Borrower or any Credit Partyother Restricted Subsidiary of the Borrower; or
(iii) sell, lease or transfer any of its properties property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw;
(iiB) the Notes or this Agreement and the other Credit DocumentsAgreement;
(iiiC) contractual encumbrances existing on non-assignment provisions of any contract or any lease of any Restricted Subsidiary of the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired Borrower entered into in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredbusiness;
(vD) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viE) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryNew Credit Agreement;
(viiF) Indebtedness agreements existing on the Closing Date to the extent and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture the manner such agreements and other similar agreements or arrangements relating solely to such joint ventureare in effect on the Closing Date;
(ixG) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect restrictions on the transfer of assets subject to intellectual property and other agreements, in each case, entered into in any Lien permitted under this Agreement imposed by the ordinary course holder of businesssuch Lien;
(xH) restrictions imposed by any agreement to sell assets or conditions contained in Capital Stock permitted under this Agreement to any trading, netting, operating, construction, service, supply, purchase, sale Person pending the closing of such sale;
(I) any agreement or instrument governing Capital Stock of any Person that is acquired;
(J) any Purchase Money Note or other agreement to which the Company Debt or any Restricted Subsidiary is other contractual requirements of a party entered into Securitization Entity in the ordinary course of businessconnection with a Qualified Securitization Transaction; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject restrictions apply only to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted SubsidiarySecuritization Entity;
(xiK) other Debt outstanding on the Closing Date or permitted to be issued or incurred under this Agreement; provided that any encumbrance or restriction such restrictions are ordinary and customary with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to the type of Debt being incurred or by reason Preferred Stock being issued (under the relevant circumstances) if the Board of an agreement Directors of the Borrower determines that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does will not extend materially adversely affect the Borrower’s ability to any assets make principal or property of interest payments on the Company or any other Restricted Subsidiary other than the assets and property of such SubsidiarySenior Unsecured Obligations;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xviiL) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liensbusiness; orand
(xviiiM) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (iA) through (xviiL) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyBorrower’s Board of Directors (evidenced by a Board Resolution) whose judgment shall be conclusively binding, no not materially more restrictive in any material respect with respect to such encumbrance dividend and other payment restrictions taken as a whole than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Neither the Company shall notnor the Parent shall, and neither the Company nor the Parent shall not permit any of their respective Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (a) (i) (A) pay dividends or make any other distributions to the Company, the Parent or any Credit Party of their respective Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary profits, or (Bii) pay any Indebtedness owed to the Company, the Parent or any Credit Party;
of their respective Restricted Subsidiaries, (iib) make loans or advances or capital contributions to the Company, the Parent or any Credit Party; or
of their respective Restricted Subsidiaries, or (iiic) sell, lease or transfer any of its properties or assets to the Company Company, the Parent or any of their respective Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
reasons of (i) applicable Requirements Existing Indebtedness as in effect on the date of Law;
this Indenture, (ii) any Credit Facility, provided that the encumbrances or restrictions contained in such facility as amended, modified, supplemented, restructured, renewed, restated, refunded, replaced or refinanced or extended from time to time on one or more occasions are no more restrictive than those contained in the Credit Agreement as in effect on the date of this Agreement and the other Credit Documents;
Indenture, (iii) contractual encumbrances existing on this Indenture and the Second Restatement Effective Date;
Notes, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
applicable law, (v) any agreement instrument governing Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company Company, the Parent or any of their respective Restricted Subsidiaries or of any Person that becomes a Restricted Subsidiary as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any such Person becoming a Restricted Subsidiary or assumed (except to the extent such Indebtedness was incurred in connection with the or in contemplation of such acquisition of assets from or such Person (but, in any such case, not created in contemplation thereofbecoming a Restricted Subsidiary), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
, provided that the Consolidated Cash Flow of such Person is not taken into account (to the extent of such restriction) in determining whether such acquisition was permitted by the terms of this Indenture, (vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
nature described in clause (viic) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or above by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into customary non- assignment provisions in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts leases entered into in the ordinary course of business or arising and consistent with past practices, (vii) purchase money obligations for property acquired in connection with any the ordinary course of business that impose restrictions of the nature described in this clause (c) above on the property so acquired, (viii) Permitted Liens; or
(xviii) any Refinancings, provided that the encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, contained in the good faith judgment of the Company, agreements governing such Permitted Refinancings are no more restrictive than those contained in any material respect with respect the agreements governing the Indebtedness or Disqualified Stock being refinanced, or (ix) customary restrictions in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such encumbrance security agreements and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingmortgages.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual consensual, encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartySubsidiary;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw, rules, regulations and/or orders;
(iib) this Agreement Indenture (including, without limitation, any Liens permitted by this Indenture) and the other Credit DocumentsSenior Dollar Notes Indenture (including, without limitation, any lien permitted by such Senior Dollar Notes Indenture);
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract, or any lease or license governing a leasehold interest, of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquiredany Subsidiary of such Person;
(vie) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar any agreements or arrangements relating solely instruments existing on the Issue Date to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property the extent and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained manner such agreements are in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which effect on the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof Issue Date and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contractsthereof, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, are no more restrictive (as determined in the good faith judgment of the Company) in any material respect, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such agreements or instruments as in effect on the Issue Date;
(f) the Credit Agreement;
(g) Purchase Money Indebtedness incurred in compliance with Section 1007 hereof that impose restrictions of the nature described in clause (3) above on the property acquired;
(h) any agreement relating to Indebtedness of a Restricted Subsidiary permitted to be incurred under Section 1007 hereof;
(i) restrictions on cash or other deposits or net worth imposed under contracts entered into in the ordinary course of business;
(j) any encumbrance or restriction existing under or by reason of contractual requirements in connection with a Qualified Receivables Transaction;
(k) pursuant to any merger agreements, stock purchase agreements, asset sale agreements and similar agreements limiting the transfer of properties and assets or distributions pending consummation of the subject transaction;
(l) in the case of clause (3) of this Section 1010, any encumbrance or restriction (a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, or similar contract, (b) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, or (c) contained in security agreements securing Indebtedness of any Restricted Subsidiary to the extent permitted by this Indenture and such encumbrance or restrictions restrict the transfer of the property subject to such security agreements;
(m) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (b), (d), (e), (g), (h) or (j) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no more restrictive in any material respect with respect than the provisions relating to such encumbrance and other restrictions taken or restriction contained in agreements referred to in such clause (b), (d), (e), (g), (h) or (j) as a whole than those prior determined by the Company; and
(n) agreements or instruments, including, without limitation, joint venture agreements, entered into to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement facilitate the Turnaround Program or refinancingin connection with Permitted Joint Venture Investments.
Appears in 1 contract
Sources: Indenture (Xerox Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company or any Restricted Subsidiary or Subsidiary, (Bii) pay any Indebtedness owed to the Company or any Credit Party;
Restricted Subsidiary, (iiiii) make loans or advances to the Company or any Credit Party; or
other Restricted Subsidiary, or (iiiiv) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
. The foregoing provisions shall not restrict any encumbrances or restrictions: (bi) The existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such 141 41 agreements; provided that the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (ii) existing under or by reason of:
(i) of applicable Requirements law, rule or regulation or, to the extent not material to the Company, at the behest of Law;
(ii) this Agreement and the other Credit Documents;
regulatory authorities; (iii) contractual existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances existing on or restrictions are not applicable to any Person or the Second Restatement Effective Date;
property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) purchase money obligations for in the case of clause (iv) of the first paragraph of this Section 4.04, (A) that restrict in a customary manner the subletting, assignment or transfer of any property acquired or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business business, not relating to any Indebtedness, and Financing Lease Obligations that impose restrictions do not, individually or in the aggregate, detract from the value of the nature discussed in clause (iii) property or assets of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into any manner material to the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person Subsidiary; (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viv) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; (vi) with respect to Restricted Subsidiaries in which, on and subsequent to the Closing Date, the Company and its Restricted Subsidiaries only make Investments that are evidenced by unsubordinated promissory notes that bear a reasonable rate of interest and are payable prior to the Stated Maturity of the Notes; provided that such Subsidiary;
encumbrances and restrictions expressly allow the payment of interest and principal on such promissory notes; (vii) Indebtedness solely of the type referred to in clause (iii) or (iv) of the first paragraph of this Section 4.04 that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of Common Stock of a Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiaries and Liens otherwise permitted Affiliates thereof (including the Company and its Restricted Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary than could be incurred pursuant to Section 9.01 and Section 9.04.
obtained in a comparable arm's-length transaction with a Person that is not such an Affiliate; or (viii) customary provisions contained in joint venture agreements the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Board of Directors of the Company determines that such encumbrance or restriction together with encumbrances and restrictions of any other similar agreements Indebtedness will not materially affect the Company's ability to make interest or arrangements relating solely to such joint venture;
principal payments on the Notes; or (ix) customary provisions contained in contractsthe agreement pertaining to the Proposed ING Credit Facility, leasesprovided that the terms thereof are not materially more restrictive than those set forth in the offer letter from ING Barings dated July 24, sub-leases, licenses, sub-licenses or similar agreements1997, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions Term Sheet attached thereto. Nothing contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.04 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.08 or (2) 142 42 restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual contractual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party toSubsidiary:
(i1) (A) to pay dividends (in cash or otherwise) or make any other distributions to any Credit Party on in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company Issuer or any other Restricted Subsidiary or (B) pay any Indebtedness Debt or other obligation owed to the Issuer or any Credit Partyother Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii2) to make loans or advances to the Issuer or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or otherwise to transfer any of its properties property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The Notwithstanding the restrictions in Section 9.08(a) shall not apply 4.8(a), the Issuer may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions existing under or by reason ofrestriction:
(i1) applicable Requirements of Lawpursuant to any agreement in effect on the Issue Date (including the Senior Credit Agreement and other documents relating to the Senior Credit Agreement);
(ii2) pursuant to this Agreement Indenture, the Notes and the other Credit DocumentsSubsidiary Guarantees;
(iii3) contractual encumbrances existing pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred or created in connection with, or anticipation of, becoming a Restricted Subsidiary; provided that the Second Restatement Effective DateIncurrence of such Debt was permitted under Section 4.9;
(iv4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended (as conclusively determined by the Issuer in good faith);
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) customary restrictions in leases (including finance leases), subleases, licenses, sublicenses, security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii3) of Section 9.08(a) hereof on the property so acquired4.8(a);
(v7) any agreement or other instrument of a Person acquired by or merged or consolidated with or into Liens permitted to be Incurred pursuant to Section 4.12 that limit the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets right of the Person so acquired and its Subsidiaries or debtor to Dispose of the property or assets so acquiredsubject to such Liens;
(vi) contracts for the sale of assets, including customary restrictions 8) with respect to a Subsidiary of the Company Restricted Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition Disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary; provided that such restriction terminates if such transaction is closed or abandoned;
(vii9) Indebtedness in bona fide contracts for the sale of any property or assets; provided that such restriction relates only to such property or assets and Liens terminates if such sale is abandoned;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be incurred Incurred under this Indenture if the Issuer determines that any such encumbrance or restriction either (i) will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to Section 9.01 and Section 9.04.agreements in effect on the Issue Date or those contained in this Indenture or the Senior Credit Agreement, in each case as determined in good faith by the Board of Directors or an Officer of the Issuer;
(viii11) if such encumbrance or restriction is the result of applicable laws or regulations;
(12) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x13) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale on cash or other agreement to which the Company or any Restricted Subsidiary is a party deposits imposed by customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv14) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi15) restrictions arising customary net worth provisions contained in connection with cash or other deposits permitted pursuant real property leases entered into by the Issuer and the Restricted Subsidiaries, so long as the Issuer has determined in good faith that such net worth provisions would not reasonably be expected to Section 9.01impair the ability of the Issuer and the Restricted Subsidiaries to meet their ongoing obligations under this Indenture and the Notes; and
(xvii16) customary prohibitions, conditions and restrictions on cash or other deposits or net worth imposed (as determined by (ithe Issuer in good faith) customers, lenders or suppliers or (ii) other third parties under contracts entered into contained in the ordinary course of business or arising in connection with agreements and documents relating to any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingQualified Securitization Transaction.
Appears in 1 contract
Sources: Indenture (PROG Holdings, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, and each of the Guarantors will not, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends dividends, in cash or otherwise, or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits profits;
(ii) pay any Indebtedness or owned by other obligation owed to any Guarantor, the Company or any other Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartySubsidiary;
(iiiii) make loans or advances to any Credit PartyGuarantor, the Company or any other Restricted Subsidiary; or
(iiiiv) sell, lease or transfer any of its properties or assets to any Guarantor, the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.12(a) shall will not apply to to:
(1) encumbrances or restrictions existing under imposed by applicable law, this Indenture or by reason of:
(i) applicable Requirements of Law;
(ii) this Agreement and the other Credit Security Documents;
(iii2) contractual any encumbrances existing or restrictions created under any agreements with respect to Indebtedness of any Guarantor, the Company or a Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to Section 4.06; provided that, in the judgment of the Company, such encumbrances or restrictions on such payments described in Sections 4.12(a)(i) through (iv) will not materially impair the Second Restatement Effective DateIssuers’ ability to make payment pursuant to this Indenture when due;
(iv3) purchase money obligations for property acquired encumbrances or restrictions contained in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed any agreement in clause (iii) of Section 9.08(a) hereof effect on the property so acquiredIssue Date, including the 10% Note Purchase Agreement;
(v4) with respect to restrictions or encumbrances referred to in Section 4.12(a)(iv), encumbrances and restrictions: (A) that restrict in a customary manner the subletting, assignment, disposition or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which any Guarantor, the Company or any Restricted Subsidiary is a party; and (B) contained in operating leases for real property and restricting only the subletting, assignment, disposition or transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) encumbrances or restrictions contained in any agreement or other instrument of a Person acquired by or merged or consolidated with or into any Guarantor, the Company or any Restricted Subsidiary in existence effect at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Subsidiaries, so acquired;
(vi6) encumbrances or restrictions contained in contracts for the sale sales of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets permitted by the provisions of Section 4.08 and Section 5.01 with respect to the assets or Capital Stock to be sold pursuant to such Subsidiarycontract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Company’s Subsidiaries by another Person;
(vii7) Indebtedness and Liens otherwise permitted with respect to be incurred pursuant restrictions or encumbrances referred to in Section 9.01 and Section 9.04.
(viii) 4.12(a)(iv), any customary provisions encumbrances or restrictions pertaining to any asset or property subject to a Lien to the extent set forth in joint venture agreements and other similar agreements or arrangements relating solely to the security document governing such joint ventureLien;
(ix) customary provisions contained in contracts, leases, sub-leases, 8) encumbrances or restrictions imposed by applicable law or regulation or by governmental licenses, sub-licenses concessions, franchises or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of businesspermits;
(x9) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or conditions contained replaces the agreements containing the encumbrances or restrictions in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of businessclauses (1) through (8) above and clauses (10) through (13) below; provided that the terms and conditions of any such encumbrances or restrictions are not materially less favorable, taken as a whole, to Holders than those under or pursuant to the agreement prohibits the encumbrance of solely the property so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiaryreplaced;
(xi10) any encumbrance encumbrances or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into the ordinary course of business;
(11) customary encumbrances or restrictions in joint venture agreements, operating agreements, limited liability company agreements, partnership agreements, or shareholders agreements entered into in the ordinary course of business and in good faith; provided that such encumbrance or arising restriction is applicable only to the joint venture, limited liability company, partnership or corporation, as applicable;
(12) in the case of Section 4.12(a)(iv), customary encumbrances or restrictions in connection with any Permitted Lienspurchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business; or
(xviii13) any encumbrances encumbrance or restrictions restriction arising by reason of the type referred to customary non-assignment provisions in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingagreements.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuers shall not, and shall not permit any of their Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
of the Issuers to (i) (Aa)(i) pay dividends or make any other distributions to the Issuers or any Credit Party Restricted Subsidiary of the Issuers (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by (ii) repay any Indebtedness or any other obligation owed to the Company Issuers or any Restricted Subsidiary or of the Issuers, (B) pay any Indebtedness owed to any Credit Party;
(iib) make loans or advances or capital contributions to the Issuers or any Credit Party; or
of their Restricted Subsidiaries or (iiic) sell, lease or transfer any of its properties or assets to the Company Issuers or any of their Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable Requirements of Law;
encumbrances or 82 -73- restrictions existing on the Series A/B Issue Date to the extent and in the manner such encumbrances and restrictions were in effect on the Series A/B Issue Date (including without limitation pursuant to the Senior Credit Facility or under the Series B Notes or the Discount Notes), (ii) this Agreement the Indenture, the Notes and the other Credit Documents;
Guarantees and the Series C/D Indenture, Series D Notes and the related guarantees, (iii) contractual encumbrances existing on the Second Restatement Effective Date;
applicable law, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
, (v) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and consistent with past practices, (vi) contracts for Refinancing Indebtedness; provided that such payment restrictions are no more restrictive than those contained in the sale agreements governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, (vii) customary restrictions in security agreements or mortgages securing Indebtedness of assets, including the Issuers or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages or (viii) customary restrictions with respect to a Restricted Subsidiary of the Company Issuers pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Transwestern Holdings Lp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party toSubsidiary:
(i1) (A) to pay dividends (in cash or otherwise) or make any other distributions to any Credit Party on in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company Issuer or any other Restricted Subsidiary or (B) pay any Indebtedness Debt or other obligation owed to the Issuer or any Credit Partyother Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii2) to make loans or advances to the Issuer or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or otherwise to transfer any of its properties property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The Notwithstanding the restrictions in Section 9.08(a) shall not apply 4.8(a), the Issuer may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions existing under or by reason ofrestriction:
(i1) applicable Requirements of Lawpursuant to any agreement in effect on the Issue Date (including the Senior Credit Facilities and other documents relating to the Senior Credit Facilities);
(ii2) pursuant to this Agreement Indenture, the Notes, the Security Documents and the other Credit DocumentsSubsidiary Guarantees;
(iii3) contractual encumbrances pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Second Restatement Effective DateIssue Date or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred in connection with, or anticipation of, becoming a Restricted Subsidiary; provided that the Incurrence of such Debt was permitted under Section 4.9;
(iv4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended (as conclusively determined by the Issuer in good faith);
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) customary restrictions in leases (including capital leases), subleases, licenses, sublicenses, security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii3) of Section 9.08(a) hereof on the property so acquired4.8(a);
(v7) any agreement or other instrument of a Person acquired by or merged or consolidated with or into Liens permitted to be incurred pursuant to Section 4.12 that limit the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets right of the Person so acquired and its Subsidiaries or debtor to Dispose of the property or assets so acquiredsubject to such Liens;
(vi) contracts for the sale of assets, including customary restrictions 8) with respect to a Subsidiary of the Company Restricted Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition Disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(vii9) Indebtedness and Liens in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be incurred Incurred under this Indenture if the Issuer determines that any such encumbrance or restriction either (i) will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to Section 9.01 and Section 9.04.agreements in effect on the Issue Date or those contained in this Indenture or the Senior Credit Facilities, in each case as determined in good faith by the Board of Directors or an Officer of the Issuer;
(viii11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries;
(12) if such encumbrance or restriction is the result of applicable laws or regulations;
(13) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x14) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale on cash or other agreement to which the Company or any Restricted Subsidiary is a party deposits imposed by customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;or
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv15) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Vertiv Holdings Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw;
(iib) this Agreement and the other Credit DocumentsIndenture;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for any Credit Agreement;
(f) agreements or instruments existing on the sale of assetsIssue Date to the extent and in the manner such agreements are in effect on the Issue Date; or
(g) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, including customary restrictions with respect to a Subsidiary of the Company assumed or incurred pursuant to an agreement referred to in clause (b), (d) or (e) above; provided, however, that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted provisions relating to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend contained in any such Indebtedness are no less favorable to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect as determined by the Board of Directors of the Company in its reasonable and good faith judgment than the provisions relating to such encumbrance and other restrictions taken as a whole than those prior or restriction contained in agreements referred to in such amendmentclause (b), modification, restatement, renewal, increase, supplement, refunding, replacement (d) or refinancing(e).
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (Aa) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits profits, or
(b) repay any Debt or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;Subsidiary, or
(iic) make loans or advances or Capital Contributions to the Company or any Credit Party; Restricted Subsidiary, or
(iiid) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in . Notwithstanding the foregoing, this Section 9.08(a) 10.10 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date,
(2) encumbrances or restrictions in (i) applicable Requirements of Law;
any Credit Facilities (other than a Borrowing Base Facility) to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date, and (ii) this Agreement and the other Credit Documents;any Borrowing Base Facility,
(iii3) contractual encumbrances existing on this Indenture, the Second Restatement Effective Date;PIK Toggle Notes, the Floating Rate Notes, the Floating Rate Notes Indenture, any Guarantees or any of the Collateral Documents,
(iv4) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;any applicable law, rule, regulation, or order required by any governmental authority,
(v5) any instrument governing Acquired Debt, or other agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary Subsidiary, as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person (including any Subsidiary of the Person), so acquired acquired,
(6) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and its Subsidiaries consistent with past practices, and customary restrictions imposed on the transfer and assignment of intellectual property,
(7) Refinancing Debt; provided, that such restrictions are not on the whole materially more restrictive than those contained in the agreements governing the Debt being extended, refinanced, renewed, replaced, defeased or refunded,
(8) restrictions in security agreements or mortgages securing Debt of the Company or a Restricted Subsidiary only to the extent such restrictions restrict the transfer of the property or assets so acquired;subject to such security agreements and mortgages,
(vi9) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;Restricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the Capital Stock or assets to be sold or disposed of,
(vii10) Indebtedness purchase money obligations for property acquired in the ordinary course of business and Liens Capitalized Lease Obligations in each case that impose restrictions of the nature described in clause (d) of this Section 10.10 on the property so acquired,
(11) any agreement for the sale of assets (including any Asset Sale) that restricts transfers of such assets pending their sale,
(12) secured Debt otherwise permitted to be incurred pursuant to the provisions of the covenant described above under Section 9.01 and Section 9.04.10.07 that limits the right of the debtor to dispose of the assets securing such Debt,
(viii13) customary provisions any encumbrance or restriction contained in joint venture agreements Purchase Money Debt to the extent that such encumbrance or restriction (A) only restricts the transfer of the Property financed with such Purchase Money Debt and other similar agreements or arrangements relating (B) solely relates to the Property financed with such joint venture;Purchase Money Debt,
(ix14) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses restrictions on cash or similar agreements, including with respect to intellectual property and other agreements, in each case, deposits imposed by customers under contracts entered into in the ordinary course of business,
(x15) customary encumbrances or restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to existing under or by reason of an agreement that such Subsidiary is a party to provisions in joint venture or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtednesssimilar agreements, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided thatshareholder agreements, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into sale and leaseback transactions required in connection with a Restricted Investment)the entering into of such transactions, which limitation is encumbrances and restrictions are applicable only to the assets that are the subject of such agreements;,
(xiv16) customary provisions restricting subletting or assignment of any lease governing any leasehold interest agreements entered into between a Restricted Subsidiary and another Restricted Subsidiary which second Restricted Subsidiary is not a Subsidiary of the Company first Restricted Subsidiary provided, that such agreement does not limit dividends or any distributions to the direct parent or direct subsidiary of either such Restricted Subsidiary;,
(xv17) customary provisions restricting assignment restrictions contained in any Debt incurred in compliance with Section 10.05, provided, that, such restrictions, taken as a whole, are, in the good faith judgment of any agreement entered into by the Company’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (1), (2) and (3) above and the Company determines in good faith that any such restriction will not affect the Company’s ability to make principal or any Restricted Subsidiary in interest payments on the ordinary course of business;PIK Toggle Notes,
(xvi18) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising created in connection with any Permitted Liens; Receivables Facility solely with respect to the Subsidiary which is the holder of the applicable receivables, or
(xviii19) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b); provided above, provided, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no not materially more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than that those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. Nothing contained in this Section 10.10 shall prevent the Company or any Restricted Subsidiary from creating, incurring, assuming or suffering to exist any Liens otherwise permitted in accordance with Section 10.07.
Appears in 1 contract
Sources: First Supplemental Indenture (Catalyst Paper General Partnership)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary;
(Bii) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iiiii) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary; or
(iiiiv) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.. The foregoing provisions shall not prohibit any encumbrances or restrictions:
(bi) The existing on the Issue Date in this Indenture or any other agreement in effect on the Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances existing on or restrictions are not applicable to any Person or the Second Restatement Effective Dateproperty or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) purchase money obligations for in the case of clause (iv) of the first paragraph of this Section 4.06, (A) that restrict in a customary manner the subletting, assignment or transfer of any property acquired or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business business, not relating to any Indebtedness, and Financing Lease Obligations that impose restrictions do not, individually or in the aggregate, detract from the value of the nature discussed in clause (iii) property or assets of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into any manner material to the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;Subsidiary; or
(viv) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions . Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.06 shall prevent the Company or any Restricted Subsidiary is a party entered into in from (i) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers Subsidiaries or (ii) other third parties creating, incurring, assuming or suffering to exist any Liens otherwise permitted under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions Section 4.09 of the type referred to March 1997 Senior Notes Indenture as in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of effect on the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingDeemed Closing Date.
Appears in 1 contract
Sources: Senior Subordinated Deferred Interest Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) : (A) pay dividends or make any other distributions to the Company or any Credit Party other Restricted Subsidiary of the Company on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits profits, or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to the Company or any Credit Party;
other Restricted Subsidiary of the Company, (iiB) make loans or advances to to, or guarantee any Credit Party; or
Indebtedness or other obligations of, the Company or any other Restricted Subsidiary of the Company or (iiiC) sell, lease or transfer any of its properties or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements with respect to clauses (A), (B), and (C) of Lawthis Section 4.12,
(1) any Credit Facility; provided that such restrictions, taken as a whole, are, in the good faith judgment of the Company's Board of Directors, not materially more restrictive with respect to such encumbrances and restrictions than those customary in comparable financings (as determined by the Company) and the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes;
(ii2) this Agreement and pursuant to an agreement in effect at or entered into on the other Credit DocumentsIssue Date, including, but not limited to, the Existing Facility;
(iii3) contractual encumbrances existing on the Second Restatement Effective Dateany applicable law or any rule, regulation or order of any governmental authority;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument governing Indebtedness of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary Subsidiaries as in existence effect at the time of such the acquisition or at (except to the time it merges with or into the Company or any Restricted Subsidiary or assumed extent that Indebtedness was incurred in connection with the acquisition of assets from such Person (but, in any such case, not created or in contemplation thereofof the acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi5) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an any agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of any Restricted Subsidiary of the Company pending closing of such Subsidiarysale or disposition;
(vii6) refinancing Indebtedness permitted under Section 4.10(b)(11); provided, however, that such restrictions, taken as a whole, are, in the good faith judgment of the Company's Board of Directors, not materially more restrictive with respect to such encumbrances and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.restrictions than those contained in the agreements governing the Indebtedness being refinanced;
(viii7) supermajority voting requirements and other customary provisions in existing under corporate charters, by-laws, stockholders agreements, joint venture agreements and other similar agreements or arrangements relating solely to such joint ventureagreements;
(ix8) this Indenture; and
(9) customary provisions any agreement or instrument that amends, modifies, restates, renews, increases, supplements, refunds, replaces, extends or refinances any agreement or instrument described in clauses (a)(2), (a)(4) and (a)(8) of this Section 4.12, from time to time, in whole or in part, provided, that the encumbrances or restrictions set forth therein, taken as a whole, are, in the good faith judgment of the Company's Board of Directors, not materially more restrictive than those contained in contracts, leases, sub-leases, licenses, sub-licenses the predecessor agreement or similar agreements, including instrument (regardless of whether the predecessor agreement or instrument remains outstanding in whole or in part).
(b) with respect to intellectual property and other agreements, in each case, entered into in the ordinary course clause (C) of businessthis Section 4.12 only,
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi1) any encumbrance or restriction with respect consisting of customary nonassignment provisions in leases governing leasehold interests to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that the extent such Subsidiary is a party to or entered into before provisions restrict the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property transfer of the Company lease or any other Restricted Subsidiary other than the assets and property of such Subsidiaryleased thereunder;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii2) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; orbusiness;
(xviii3) any encumbrances agreements governing Permitted Liens to the extent such encumbrance or restrictions restriction restricts the transfer of the type referred property subject to such Lien;
(4) purchase money obligations for property acquired in clauses the ordinary course of business (i)or any agreement or instrument that amends, (ii) and (iii) of Section 9.08(a) imposed by any amendmentsmodifies, modificationsrestates, restatements, renewals, increasesrenews, supplements, refundingsrefunds, replacements replaces, extends or refinancings of refinances any such obligation) that impose restrictions on the contractsproperty so acquired; and
(5) customary restrictions imposed on the transfer of, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendmentslicenses related to, modificationscopyrights, restatements, renewals, increases, supplements, refundings, replacements patents or refinancings are, other intellectual property and contained in agreements entered into in the good faith judgment ordinary course of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingbusiness.
Appears in 1 contract
Sources: Indenture (Seneca Erie Gaming Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (a) (i) (A) pay dividends or make any other distributions to the Company or any Credit Party of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary profits, or (Bii) pay any Indebtedness owed to the Company or any Credit Party;
of its Restricted Subsidiaries, (iib) make loans or advances or capital contributions to the Company or any Credit Party; or
of its Restricted Subsidiaries, or (iiic) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
reasons of (i) applicable Requirements of Law;
Existing Indebtedness as in effect on the Issuance Date, (ii) this the Credit Agreement, PROVIDED that the encumbrances or restrictions contained in such agreement as amended, modified, supplemented, restructured, renewed, restated, refunded, replaced or refinanced or extended from time to time on one or more occasions are no more restrictive than those contained in the Credit Agreement and as in effect on the other Credit Documents;
Issuance Date, (iii) contractual encumbrances existing on this Indenture and the Second Restatement Effective Date;
Notes, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
applicable law, (v) any agreement instrument governing Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiaries or of any Person that becomes a Restricted Subsidiary as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any such Person becoming a Restricted Subsidiary or assumed (except to the extent such Indebtedness was incurred in connection with the or in contemplation of such acquisition of assets from or such Person (but, in any such case, not created in contemplation thereofbecoming a Restricted Subsidiary), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
, PROVIDED that the Consolidated Cash Flow of such Person is not taken into account (to the extent of such restriction) in determining whether such acquisition was permitted by the terms of this Indenture, (vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
nature described in clause (viic) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or above by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into customary non-assignment provisions in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts leases entered into in the ordinary course of business or arising and consistent with past practices, (vii) purchase money obligations for property acquired in connection with any Permitted Liens; or
(xviii) any encumbrances or the ordinary course of business that impose restrictions of the type referred to nature described in clauses this clause (i)c) above on the property so acquired, (iiviii) and (iii) of Section 9.08(a) imposed by any amendmentsPermitted Refinancing Indebtedness, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of PROVIDED that the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, restrictions contained in the good faith judgment of the Company, agreements governing such Permitted Refinancings are no more restrictive than those contained in any material respect with respect the agreements governing the Indebtedness or Disqualified Stock being refinanced, or (ix) customary restrictions in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such encumbrance security agreements and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingmortgages.
Appears in 1 contract
Sources: Indenture (Capstar Hotel Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of the Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
: (i) (A) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock (it being understood that the priority of any preferred stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, or measured by, its profits or owned by liquidating distributions being paid on common stock shall not be deemed a restriction on the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed ability to any Credit Party;
make distributions on Capital Stock); (ii) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary; or
or (iii) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to ; except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements law, rule, regulation or order or the terms of Lawany license, authorization, concession or permit provided by any governmental authority;
(ii2) this Agreement and the other Credit DocumentsIndenture;
(iii3) contractual encumbrances the Credit Agreement and/or the documentation for or related to the Credit Agreement;
(4) the Existing Notes and/or the documentation for or related to the Existing Notes;
(5) provisions that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset;
(6) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the assets of any Person, other than the Person or the assets of the Person so acquired;
(7) agreements existing on the Second Restatement Effective Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(iv8) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to any Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary pursuant to agreements as in effect on the Issue Date;
(9) purchase money obligations any instrument governing Indebtedness of a Foreign Restricted Subsidiary;
(10) customary restrictions on the transfer of any property or assets arising under a security agreement governing a Lien permitted under this Indenture;
(11) Indebtedness otherwise permitted to be incurred pursuant to Section 407 and Section 413 that apply solely to the assets securing such Indebtedness and/or the Restricted Subsidiaries incurring or guaranteeing such Indebtedness;
(12) any agreement governing Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (3), (4), (6), (7) or (9) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Refinancing Indebtedness taken as a whole are not, in the good faith determination of the Company, materially more restrictive than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (2), (3), (4), (6), (7) or (9);
(13) any agreement governing the sale or disposition of any Restricted Subsidiary or assets which restricts dividends and distributions or sales or other transfers of such assets pending such sale or disposition;
(14) any agreement, instrument or Lien placing encumbrances or restrictions applicable only to a Finance Subsidiary or an Accounts Receivable Entity;
(15) any agreement governing Indebtedness permitted to be incurred pursuant to Section 407; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness, taken as a whole, (i) are not materially more restrictive than the provisions contained in the Credit Agreement, the indentures governing the Existing Notes or in this Indenture as in effect on the Issue Date, (ii) are not more disadvantageous, taken as a whole, to the Holders than is customary in comparable financings for property acquired similarly situated issuers or (iii) will not materially impair the Company’s ability to make payments on the Notes when due, in each case in the good faith judgment of the Company;
(16) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredbusiness;
(v17) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(18) any agreement or other instrument of a Person acquired (or assumed in connection with the acquisition of property) by or merged or consolidated with or into the Company or any of its Restricted Subsidiary Subsidiaries in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquiredSubsidiaries;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii19) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(20) any encumbrances or restrictions relating to SeparationCo in connection with or in contemplation of a Permitted Separation Transaction.
Appears in 1 contract
Sources: Indenture (Tenneco Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
of the Company to (a) (i) (A) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by (ii) repay any Debt or any other obligation owed to the Company or any Restricted Subsidiary or of the Company, (B) pay any Indebtedness owed to any Credit Party;
(iib) make loans or advances or capital contributions to the Company or any Credit Party; or
of its Restricted Subsidiaries or (iiic) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable Requirements of Law;
encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date, (ii) this Agreement and encumbrances or restrictions in the other Credit Documents;
Facilities, (iii) contractual encumbrances existing on this Indenture, the Second Restatement Effective Date;
Notes and any Guarantees, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
applicable law, (v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary governing Acquired Debt as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
, (vi) contracts for customary non-assignment provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness and consistent with past practices, including customary (vii) Refinancing Debt; provided that such restrictions are not on the whole materially more restrictive than those contained in the agreements governing the Debt being extended, refinanced, renewed, replaced, defeased or refunded, (viii) restrictions in security agreements or mortgages securing Debt of the Company or a Restricted Subsidiary only to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages, (ix) restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
Restricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the Capital Stock or assets to be sold or disposed of, (viix) Indebtedness and Liens purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (c)(viii) of this Section 4.12 on the property so acquired, (xi) any agreement for the sale of assets (including any Asset Sale) that restricts transfers of such assets pending their sale, (xii) secured Debt otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary the provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary covenant described above under Section 4.08 that are limits the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property right of the Company or such Restricted Subsidiary or debtor to dispose of the assets or property of another Restricted Subsidiary;
securing such Debt, (xixiii) any encumbrance or restriction with respect contained in Purchase Money Debt to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement the extent that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property (A) only restricts the transfer of the Company or any other Restricted Subsidiary other than the assets Property financed with such Purchase Money Debt and property of such Subsidiary;
(xiiB) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent solely relates to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided thatProperty financed with such Purchase Money Debt, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingbusiness.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer allow to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company, except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw, rule, regulation or order;
(iib) this Agreement Indenture, the Notes, the Guarantees, and the other Credit Security Documents;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of manner such agreements are in effect on the Capital Stock or assets of such SubsidiaryIssue Date;
(viif) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.the Credit Facility;
(viiig) restrictions on the transfer of assets subject to any Lien permitted under Section 4.12 imposed by the holder of such Lien;
(h) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvij) restrictions arising in connection with cash or other deposits Indebtedness of Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 9.014.9; provided, however, that the Board of Directors of the Company determines in good faith at the time such dividend and other payment restrictions are created that such dividend and other payment restrictions do not materially adversely affect the Company’s ability to pay principal of, and interest on, the Notes; and
(xviik) restrictions on cash an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type incurred pursuant to an agreement referred to in clauses (ib), (iid), (e) and (iiij) of Section 9.08(a) imposed by above; provided, however, that the provisions relating to such encumbrance or restriction contained in any amendmentssuch Indebtedness, modificationstaken as a whole, restatements, renewals, increases, supplements, refundings, replacements or refinancings of are no less favorable to the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive Company in any material respect with respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e) and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing(j).
Appears in 1 contract
Sources: Indenture (MxEnergy Holdings Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and nor shall not it cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or permit or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
of the Company to (i) (Aa) pay dividends or make any other distributions to any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or profits; (B) pay any Indebtedness owed to any Credit Party;
(iib) make loans or advances or pay any Indebtedness or other obligation owed to the Company or to any Credit PartyRestricted Subsidiary of the Company; or
or (iiic) sell, lease or transfer any of its properties property or assets to the Company or to any Restricted Subsidiary.
Subsidiary of the Company (b) The restrictions in Section 9.08(a) shall not apply to any such restriction or encumbrance a "PAYMENT RESTRICTION"), except for such encumbrances or restrictions existing under or by reason of:
of any restrictions contained in (i) applicable Requirements of Law;
the Credit Documents; (ii) this Agreement the Revolving Credit Facility or the Second Lien Credit Facility, in each case, to the extent and in the other Credit Documents;
manner such Payment Restrictions are contained therein on the Closing Date; (iii) contractual encumbrances the Indebtedness pertaining to a Restricted Subsidiary of the Company that is not a Subsidiary of the Company on the Closing Date in existence at the time such Subsidiary becomes a Subsidiary of the Company; provided, however, that any such Indebtedness was not incurred as a result of, in connection with or in anticipation of the transaction pursuant to which such entity becomes a Subsidiary of the Company and it does not apply to any Person, or the properties of assets of any Person, other than the Subsidiary acquired and such Indebtedness is otherwise permitted to be incurred pursuant to Section 6.1; (iv) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 6.1 and 6.2 that limits the right of the debtor to dispose of the assets securing such Indebtedness; (v) customary non-assignment provisions of any contract or of any lease governing a leasehold interest of any Subsidiary of the Company; (vi) applicable law; (vii) agreements existing on the Second Restatement Effective Closing Date to the extent and in the manner such Payment Restrictions are in effect on the Closing Date;
; (ivviii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (ix) the terms of purchase money obligations or Capitalized Lease Obligations for property acquired in the ordinary course of business and Financing business, but only to the extent that such purchase money obligations or Capitalized Lease Obligations that impose restrictions restrict or prohibit the transfer of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
; (vx) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
; (viixi) agreements relating to Indebtedness incurred pursuant to Section 6.1(b)(xx); (xii) any instrument that Refinances any Indebtedness; provided, however, that the provisions relating to any such encumbrance or restriction in any such instrument are not materially less favorable to the Company or its Subsidiaries or the Lenders than those contained in the agreements governing the Indebtedness that was refinanced; and Liens otherwise (xiii) an agreement governing Indebtedness permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii6.1(a) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
clause (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which of the Company or any Restricted Subsidiary is a party entered into in the ordinary course definition of business; "Permitted Indebtedness," provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject provisions relating to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend contained in such Indebtedness are no less favorable to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance as determined by the Board of Directors of the Company in its reasonable and other restrictions taken good faith judgment than the provisions contained in the Credit Documents as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingin effect on the Closing Date.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not (except a Credit Party to:
Foreign Subsidiary) to (i) (Aa) pay dividends dividends, in cash or otherwise, or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or Subsidiary, (Bb) pay any Indebtedness owed to the Company or any Credit Party;
other Restricted Subsidiary, (iic) make loans an Investment in the Company or advances to any Credit Party; or
other Restricted Subsidiary or (iiid) sell, lease or transfer any of its properties Properties or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Law;
pursuant to this Indenture, the Existing Indentures, the Credit Agreement or any agreement in effect or entered into on the Issue Date, (ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any other Person, or the properties Properties or assets of any other Person, other than the Person so acquired and its SubsidiariesPerson, or the property Property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
, (viiii) contracts for the sale of assets, including that constitute customary restrictions with respect in leases and licenses relating to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness Property covered thereby and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
, (xiv) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock agreements governing Indebtedness permitted to be incurred subsequent to in accordance with this Indenture provided that the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, restrictions are not materially more restrictive in the judgment of aggregate than the Companyrestrictions contained in this Indenture, such incurrence will not materially impair any Credit Party's ability to make payments or (v) existing under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by that extends, renews, refinances or replaces (in whole or in part, and whether or not such prior agreements remain outstanding) the Company or any Restricted Subsidiary agreements containing the restrictions in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in foregoing clauses (i), (ii), (iii) and (iiiiv) provided that the terms and conditions of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings such restrictions are not materially less favorable to the Holders of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole Securities than those prior under or pursuant to such amendmentthe agreement evidencing the Indebtedness so extended, modificationrenewed, restatement, renewal, increase, supplement, refunding, replacement refinanced or refinancingreplaced.
Appears in 1 contract
Sources: Indenture (Ocean Energy Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company, except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw;
(iib) this Agreement Indenture, the Notes, the Guarantees and the other Credit Collateral Documents;
(iiic) contractual encumbrances existing on the Second Restatement Effective DateCredit Agreement and the security agreements and other collateral documents relating thereto;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements existing on the sale of assets, including customary Issue Date to the extent and in the manner such encumbrances or restrictions with respect to a Subsidiary of are in effect on the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryIssue Date;
(viif) Indebtedness and Liens otherwise restrictions on the transfer of assets subject to any Lien permitted to be incurred pursuant to Section 9.01 and Section 9.04.under this Indenture imposed by the holder of such Lien;
(viiig) customary restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(h) provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xviA) restrictions arising in connection agreements or instruments that restrict the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) any transfer of, agreement to transfer, option or right with cash respect to, or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash Lien on, any property or other deposits assets of the Company or net worth imposed any Restricted Subsidiary not otherwise prohibited by (i) customers, lenders or suppliers this Indenture or (iiC) other third parties under contracts entered into provisions arising or agreed to in the ordinary course of business not relating to any Indebtedness that do not, individually or arising in connection with the aggregate, detract from the value of property or assets of the Company or any Permitted Liens; orof its Restricted Subsidiaries in any manner material to the Company or any of its Restricted Subsidiaries;
(xviiij) restrictions contained in the terms of Purchase Money Obligations, Capitalized Lease Obligations, Industrial Revenue Bonds or Commodity Inventory Purchase Obligations not incurred in violation of this Indenture; provided that such restrictions relate only to the property financed with such Indebtedness, and restrictions contained in the terms of any encumbrances other Indebtedness not incurred in violation of this Indenture;
(k) provisions in agreements or restrictions instruments which prohibit the payment of dividends or the type making of other distributions with respect to any Capital Stock of a Person other than on a pro rata basis; and
(l) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (ib) through (xviif) of this Section 9.08(b)above; provided provided, however, that the provisions relating to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements encumbrance or refinancings are, restriction contained in any such Indebtedness are no less favorable to the good faith judgment of Company or the Company, no more restrictive applicable Restricted Subsidiary in any material respect with respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance and other restrictions taken as a whole than those prior or restriction contained in agreements referred to in such amendmentclauses (b) through (f). Nothing contained in this Section 4.8 shall prevent the Company or any of its Restricted Subsidiaries from creating, modificationincurring, restatement, renewal, increase, supplement, refunding, replacement assuming or refinancingsuffering to exist any Liens otherwise permitted in Section 4.2.
Appears in 1 contract
Sources: Indenture (Listerhill Total Maintenance Center LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary, (Bii) pay any Indebtedness owed to the Company or any Credit Party;
other Restricted Subsidiary, (iiiii) make loans or advances to the Company or any Credit Party; or
other Restricted Subsidiary or (iiiiv) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.. The foregoing provisions shall not restrict any encumbrances or restrictions:
(bi) The existing on the Closing Date in this Indenture, the Dollar Notes Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; PROVIDED that the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances existing on or restrictions are not applicable to any Person or the Second Restatement Effective Dateproperty or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) purchase money obligations for in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property acquired or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business business, not relating to any Indebtedness, and Financing Lease Obligations that impose restrictions do not, individually or in the aggregate, detract from the value of the nature discussed in clause (iii) property or assets of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into any manner material to the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquiredSubsidiary;
(viv) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; or
(vii) Indebtedness imposed in connection with a transaction described in clause (f) of the proviso to the definition of "Asset Sale" and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to a Restricted Subsidiary that transfers assets to the special purpose entity referred to therein; PROVIDED that the Company determines that any such joint venture;
(ix) customary provisions encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.05 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 hereof or (2) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary;
(Bii) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary;
(iiiii) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iiiiv) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.. The foregoing provisions shall not restrict any encumbrances or restrictions:
(bi) The existing on the Purchase Date in the Credit Agreement, this Agreement or any other agreements in effect on the Purchase Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that, with respect to encumbrances and restrictions under agreements other than the Credit Agreement, the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in the aggregate in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on with respect to any Person or the property so acquired;
(v) any agreement or other instrument assets of a such Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence Subsidiary, existing at the time of such acquisition or at the time it merges such Person becomes a Restricted Subsidiary and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired or that becomes a Restricted Subsidiary;
(iv) in the case of clause (iv) of the first paragraph of this Section 8.4, (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or into Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Agreement or assumed (C) arising or agreed to in connection with the acquisition ordinary course of assets from such Person (but, in any such casebusiness, not created in contemplation thereof), which encumbrance or restriction is not applicable relating to any PersonIndebtedness, and that do not, individually or in the properties or assets aggregate, detract from the value of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries Company or any Restricted Subsidiary in any manner material to the property Company or assets so acquiredany Restricted Subsidiary;
(viv) contracts existing in contract for the sale of assetsassets permitted by Section 8.8, including customary restrictions including, without limitation, with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness or any agreement pursuant to which such SubsidiaryIndebtedness was issued if (A) either (i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement or (ii) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company) and (B) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes;
(vii) Indebtedness contained in Interest Rate Agreements, Commodities Agreements and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.Currency Agreements not prohibited by this Agreement; or
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any tradingagreement relating to secured Indebtedness or Liens not prohibited by this Agreement, netting, operating, construction, service, supply, purchase, sale if such encumbrance or other agreement restriction applies only to which the property or assets securing such Indebtedness or Liens. Nothing contained in this Section 8.4 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise not prohibited in Section 4.09 of the ordinary course Indenture or (2) restricting the sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Sources: Note Purchase Agreement (Knowles Electronics Holdings Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or Stock,
(B) pay any Indebtedness owed to any Credit Party;
(ii) make loans or advances to or pay any Credit Party; or
(iii) sell, lease Indebtedness or transfer any of its properties or assets other obligation owed to the Company or any other Restricted Subsidiary.Subsidiary of the Company, or
(bC) The restrictions except, in Section 9.08(a) shall not apply to each case, for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawlaw, rule or regulation;
(ii2) this Agreement Indenture, the Notes, the Subsidiary Guarantees and the other Credit Collateral Documents;
(iii3) contractual encumbrances existing on customary non-assignment provisions of any contract governing a leasehold interest of or any lease of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi5) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of manner such agreements are in effect on the Capital Stock or assets of such SubsidiaryIssue Date;
(vii6) Indebtedness and Liens otherwise restrictions on the transfer of assets subject to any Lien permitted to be incurred pursuant to Section 9.01 and Section 9.04.under this Indenture;
(viii7) customary restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(8) provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint ventureventure or similar entity or the equity interests therein);
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x9) restrictions or conditions contained in any tradingother Indebtedness incurred in compliance with Section 4.13 (including Permitted Indebtedness), netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customerssuch restrictions, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i)taken as a whole, (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyBoard of Directors, no more materially restrictive in any material respect with respect to such encumbrance encumbrances and other restrictions taken as a whole than those prior customary in comparable financings and (ii) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal, premium, if any, or interest, if any, on payments on the Securities or any Guarantor’s ability to honor its Subsidiary Guarantee in respect thereof; or
(10) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (4), (5) or (6) above, provided that the provisions relating to such amendmentencumbrance or restriction contained in any such Indebtedness are no less favorable to the Company in any material respect, modificationas determined by the Board of Directors, restatementthan the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (2), renewal(4), increase, supplement, refunding, replacement (5) or refinancing(6).
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock (it being understood that the priority of any Preferred Stock in receiving dividends or with liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make distributions on or in respect of Capital Stock);
(2) make loans or advances, or to pay any Indebtedness or other obligation owed, to the Company or any other interest Restricted Subsidiary (it being understood that the subordination of loans or participation in, or measured by, its profits or owned advances made by a Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or (B) pay obligations incurred or owed by the Company or such other Restricted Subsidiary, or of Indebtedness or any other obligation owed by any Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or obligations incurred or owed by such Restricted Subsidiary shall not be deemed a restriction on the ability of a Restricted Subsidiary to any Credit Party;
(ii) make loans or advances or to pay such Indebtedness or such other obligation);
(3) guarantee any Credit PartyIndebtedness or any other obligation of the Company or any Restricted Subsidiary; or
(iii4) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
(i1) With respect to clauses (1)-(4) above:
(a) applicable Requirements of Lawlaw, rule, regulation, order, approval, license, permit or similar restriction;
(iib) this Agreement and any encumbrance or restriction pursuant to or by reason of an agreement in effect at the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Issue Date;
(ivc) purchase money obligations for property acquired (i) this Indenture or any other indentures governing Pari Passu Indebtedness; provided, however, that the provisions relating to such encumbrances or restriction contained in any such other indenture are no less favorable to the Holders in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions relating to such encumbrances or restrictions contained in this Indenture or (ii) instruments governing other Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.06; provided that the provisions relating to such encumbrance or restriction contained in such instruments are not materially less favorable to the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than the provisions contained in the ordinary course of business Senior Credit Facility and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof this Indenture as in effect on the property so acquiredIssue Date;
(vd) the Senior Credit Facility;
(e) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Industry Investments”;
(f) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(g) any agreement encumbrance or other instrument of restriction with respect to any Person at the time it becomes a Person acquired by Restricted Subsidiary or is merged or consolidated with or into the Company or any a Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)Subsidiary, which encumbrance or restriction is not applicable to any Personsuch Restricted Subsidiary, or the properties or assets of any Personsuch Restricted Subsidiary, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vih) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the assets or Capital Stock to be sold or disposed of;
(viii) Indebtedness any instrument governing a Permitted Lien, to the extent and Liens otherwise permitted only to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and the extent such instrument restricts the transfer or other similar agreements or arrangements relating solely disposition of assets subject to such joint ventureLien;
(ixj) customary provisions encumbrances and restrictions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, contracts entered into in the ordinary course of business
(x) restrictions , not relating to any Indebtedness, and that do not, individually or conditions contained in any tradingthe aggregate, nettingdetract from the value of, operating, construction, service, supply, purchase, sale or other agreement to which from the ability of the Company or any and the Restricted Subsidiary is a party entered into in Subsidiaries to realize the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the value of, property or assets of the Company or such any Restricted Subsidiary that are the subject in any manner material to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xvk) customary provisions restricting assignment of any an agreement entered into by governing Refinancing Indebtedness incurred to Refinance the Company Indebtedness issued, assumed or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted incurred pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type an agreement referred to in clauses clause (ib), (iic), (d) and or (iiig) of Section 9.08(a) imposed by above or this clause (k), or contained in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations amendment to an agreement referred to in clauses clause (ib), (c), (d) through or (xviig) of above or this Section 9.08(bclause (k); provided provided, however, that the provisions relating to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements encumbrance or refinancings restriction contained in any such agreement governing Refinancing Indebtedness or amended agreement are, in the good faith judgment of the Companytaken as a whole, no more restrictive less favorable to the Holders in any material respect with respect as determined by the Company in its reasonable and good faith judgment than the provisions relating to such encumbrance and other restrictions taken as a whole than those prior or restriction contained in the applicable agreement referred to in such amendmentclause (b), modification(c), restatement, renewal, increase, supplement, refunding, replacement (d) or refinancing.(g) above or this clause (k);
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
: (i) (A) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;
Stock; (ii) make loans or advances or to pay any Credit PartyIndebtedness owed to the Company or any other Restricted Subsidiary of the Company; or
or (iii) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
: (ia) applicable Requirements of Law;
law; (iib) this Agreement Indenture, the Guarantees and the other Credit Documents;
Notes; (iiic) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course customary non-assignment provisions of business and Financing Lease Obligations that impose restrictions any contract or any lease governing a leasehold interest of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at of the time of such acquisition or at the time it merges with or into the Company or Company; (d) any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired acquired; (e) the Credit Agreement and its Subsidiaries or any other agreements in effect on the property or assets so acquired;
Issue Date; (vif) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such Subsidiary;
encumbrance or restriction, by its terms, terminates upon consummation of such sale or termination of such agreements); (viig) any agreement or instrument governing Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
or Capital Stock of any Person in effect at the time it is acquired by the Company or any of its Restricted Subsidiaries; (viiih) purchase money obligations for assets acquired in the ordinary course of business that impose restrictions of the nature described in (3) above on the property so acquired; (i) customary provisions with respect to the disposition or distribution of assets in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
agreements; (ixj) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual restrictions on transfers of property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to a Lien permitted under this Indenture imposed by the holder of such agreementLien; or (k) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, the payment rights arising thereunder assumed or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary incurred pursuant to or by reason of an agreement permitted above; provided, however, that such Subsidiary is a party the provisions relating to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend contained in any such Indebtedness are no less favorable to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance and other restrictions taken as a whole than those prior or restriction contained in agreements referred to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingabove.
Appears in 1 contract
Sources: Indenture (Railworks Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 3.11(b) below, the Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock to the Company or with respect any Restricted Subsidiary of which it is a Subsidiary or pay any Indebtedness owed to the Company or any other interest Restricted Subsidiary of which it is a Subsidiary;
(2) make loans or participation advances to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or measured by, its profits any other Restricted Subsidiary of which it is a Subsidiary (it being understood that the subordination of loans or owned advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed shall not be deemed to any Credit Party;
(ii) be a restriction on the ability to make loans or advances to any Credit Party; advances); or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary of which it is a Subsidiary.
(b) The restrictions in provisions of Section 9.08(a3.11(a) shall above will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Law;law, rule, regulation, order or governmental license, permit or concession;
(ii2) this Agreement and the other Credit Documents;Indenture;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v3) any agreement as in effect on the Issue Date, including pursuant to the Bank Credit Facility and the related documentation and Hedging Obligations;
(4) customary non-assignment provisions of any contract and customary provisions restricting assignment or other instrument subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Person Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(5) in respect of a Restricted Subsidiary acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at after the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed Issue Date (other than an encumbrance related to Indebtedness Incurred in connection with the acquisition of assets from with, or in anticipation or contemplation of, such Person (but, in any such case, not created in contemplation thereofacquisition), which encumbrance or restriction is outstanding on the date of such acquisition and is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;acquired;
(vi6) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided that such restrictions apply solely to the Capital Stock or assets of such Subsidiary;Restricted Subsidiary being sold;
(vii7) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii8) restrictions on cash or other deposits or net worth imposed by clients under contracts entered into in the ordinary course of business, including cash paid to any Subsidiary as an advance for media or production expenses;
(9) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; venture; or
(xviii10) any encumbrances an agreement governing Indebtedness Incurred to Refinance Indebtedness issued, assumed or restrictions of the type Incurred pursuant to an agreement referred to in clauses clause (i2), (ii3) and or (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii5) of this Section 9.08(b); 3.11(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no Refinancing agreement is not materially more restrictive in any material respect with respect to such encumbrance and other encumbrances or restrictions taken as a whole than those prior contained in the agreement referred to in such amendmentclause (2), modification, restatement, renewal, increase, supplement, refunding, replacement (3) or refinancing(5).
Appears in 1 contract
Sources: Indenture (Stagwell Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw;
(iib) this Agreement and the other Credit DocumentsIndenture;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for the sale of assets, including customary restrictions with respect Credit Agreement (and all replacements or substitutions thereof on terms no more adverse to a Subsidiary of the Holders and no less favorable or more onerous to the Company and its Restricted Subsidiaries) and the Collateral Agreements;
(f) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; or
(g) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (b), (d), (e) or (f) above; provided, however, that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses encumbrance or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions restriction contained in any tradingsuch Indebtedness are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (b), netting(d), operating, construction, service, supply, purchase, sale (e) or other agreement to which (f). Nothing contained in this covenant shall prevent the Company or any of its Restricted Subsidiary is a party entered into Subsidiaries from creating, incurring, assuming or suffering to exist any Liens otherwise permitted in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing4.18.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Aa) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation inStock, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;
(iib) make loans or advances or to pay any Credit Party; or
Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company, or (iiic) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawlaw;
(ii2) this Agreement and the other Credit DocumentsIndenture;
(iii3) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired non-assignment provisions of any contract or any lease entered into in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredbusiness;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi5) contracts for agreements existing on the sale Issue Date (including, without limitation, the Senior Credit Facility);
(6) restrictions on the transfer of assets, including customary assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(7) restrictions with respect imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(8) any agreement or instrument governing Capital Stock of any Person that is in effect on the date such Person is acquired by the Company or a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryCompany;
(vii9) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contractsany Purchase Money Note, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Indebtedness or any Restricted Subsidiary is other contractual requirements of a party entered into Securitization Entity in the ordinary course of businessconnection with a Qualified Securitization Transaction; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject restrictions apply only to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted SubsidiarySecuritization Entity;
(xi10) any encumbrance or restriction Indebtedness incurred after the Issue Date in accordance with the terms of this Indenture; provided that the restrictions contained in the agreements, governing such new Indebtedness are ordinary and customary with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason the type of an agreement that such Subsidiary is a party to or entered into before Indebtedness being incurred (under the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiaryrelevant circumstances);
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii11) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; orbusiness;
(xviii12) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (c) of this Section 4.14;
(13) provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii13) of this Section 9.08(b)4.14; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors, no more restrictive in any material respect with respect to such encumbrance dividend and other payment restrictions taken as a whole than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Bedding Experts Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company, except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw;
(iib) this Agreement and the other Credit DocumentsIndenture;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of manner such agreements are in effect on the Capital Stock or assets of such SubsidiaryIssue Date;
(viif) Indebtedness and Liens otherwise restrictions on the transfer of assets subject to any Lien permitted to be incurred pursuant to Section 9.01 and Section 9.04.under this Indenture imposed by the holder of such Lien;
(viiig) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(h) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvii) restrictions arising an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in connection with cash Section 4.7 (3) (b), (d), (e) or other deposits permitted (f) above or an agreement governing Indebtedness incurred pursuant to Section 9.014.3(b)(2)(ii); provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in Sections 4.7(3) (b), (d), (e) and (f); and
(xviij) restrictions on cash or other deposits or net worth imposed by in respect of ▇▇▇▇▇▇▇▇▇ ▇▇ and its subsidiaries (i) customers“▇▇▇▇▇▇▇▇▇”), lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions for so long as they are not Guarantors and none of the type referred Company or the Guarantors guarantee or otherwise are directly or indirectly liable with respect to in clauses (i)any Indebtedness of ▇▇▇▇▇▇▇▇▇, (ii) and (iii) an agreement governing Indebtedness of Section 9.08(a) imposed by any amendments▇▇▇▇▇▇▇▇▇ permitted to be incurred under the Indenture; provided, modificationshowever, restatements, renewals, increases, supplements, refundings, replacements or refinancings that the Board of Directors of the contracts, instruments or obligations referred to Company in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the their reasonable and good faith judgment determine that any encumbrance or restriction created by such agreement will not impair the ability of the Company, no more restrictive Company to make scheduled payments of interest and principal on the Notes in any material respect with respect to such encumbrance each case as and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingwhen due.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw, rule or regulation;
(iiB) this Agreement Indenture, the Notes, the Guarantees, the Collateral Agreements and the other Credit DocumentsIntercreditor Agreements;
(iiiC) contractual encumbrances existing on customary non-assignment provisions of any contract, lease or license of any Restricted Subsidiary of the Second Restatement Effective DateCompany to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vD) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viE) contracts for the sale of assets, including customary restrictions with respect Working Capital Facility (and all replacements or substitutions thereof on terms no more adverse to a Subsidiary of the Holders and not more materially restrictive to the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiaryand its Restricted Subsidiaries);
(viiF) Indebtedness agreements existing on the Issue Date to the extent and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.in the manner such agreements are in effect on the Issue Date;
(viiiG) customary restrictions on the transfer of assets subject to any Lien permitted under this Indenture;
(H) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(I) provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xviJ) restrictions arising contained in connection the terms of the Purchase Money Indebtedness or Capitalized Lease Obligations not incurred in violation of this Indenture; provided, that such restrictions relate only to the assets financed with cash or other deposits permitted pursuant to Section 9.01; andsuch Indebtedness;
(xviiK) restrictions on cash or in other deposits or net worth imposed by Indebtedness incurred in compliance with the covenant described under Section 4.08 (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any including Indebtedness constituting Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(bIndebtedness); provided that such amendmentsrestrictions, modificationstaken as a whole, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (B), (E) and (F) above;
(L) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business; or
(M) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (B), (D) and (F) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Company in any material respect with respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (B), (D) and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing(F).
Appears in 1 contract
Sources: Indenture (Edgen Murray PLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist come into existence or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to any Credit Party distribution on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or Subsidiary,
(Bii) pay any Indebtedness owed to the Company or any Credit Party;other Restricted Subsidiary,
(iiiii) make loans or advances to the Company or any Credit Party; other Restricted Subsidiary or
(iiiiv) sell, lease or transfer any of its properties or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(aHowever, clause (a) shall above will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(i1) applicable Requirements of Lawany agreement (including the Senior Credit Facility and the Senior Unsecured Credit Agreement) in effect on March 22, 2007;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v2) any agreement or other instrument with respect to a Restricted Subsidiary that was not a “Restricted Subsidiary” (as defined in the Senior Unsecured Credit Agreement) of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary on March 22, 2007, in existence at the time such Person becomes (or became) a Restricted Subsidiary of the Company and not incurred in connection with, or in contemplation of, such acquisition or at the time it merges with or into Person becoming a Restricted Subsidiary, provided that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary or assumed in connection the properties or assets of the Company or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) any agreement or instrument governing any Acquired Debt or other agreement of any Person or related to assets acquired by or merged into or consolidated with the acquisition of assets from Company or any Restricted Subsidiaries, so long as such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction (A) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets or subsidiaries of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture;
(vi4) contracts for the sale any applicable law or any requirement of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiaryany regulatory body;
(vii5) the security documents evidencing any Liens securing obligations or Indebtedness and that limit the right of the debtor to dispose of the assets subject to such Liens; provided that such Liens otherwise are permitted to be incurred pursuant to under the provisions of Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture4.08;
(ix6) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses restricting subletting or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course assignment of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which lease governing a leasehold interest of the Company or any Restricted Subsidiary is a party Subsidiary, or restrictions in licenses relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such assets or property, provided, however, that such encumbrances or restrictions do not materially impact the ability of the Company to make payments on the Notes when due as required by the terms of this Indenture;
(7) asset sale agreements with respect to asset sales permitted to be made under the provisions of Section 4.14 that limit the transfer of such assets pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided provided, however, that such agreement prohibits encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the encumbrance of solely applicable company, partnership, joint venture or other entity; and provided, further, however, that such encumbrances and restrictions do not materially impact the property or assets ability of the Company or such Restricted Subsidiary that are to make payments on the subject to such agreement, Notes when due as required by the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property terms of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiarythis Indenture;
(xi9) any encumbrance cash or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to other deposits, or net worth requirements or similar requirements, imposed by reason of an agreement that such Subsidiary is a party to suppliers or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not landlords under contracts entered into in anticipation the ordinary course of an Unrestricted Subsidiary becoming a Restricted Subsidiary and business;
(10) any such encumbrance or restriction does not extend to any assets or property other Credit Facility governing debt of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other IndebtednessGuarantor, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to by Section 9.04 hereof4.06; provided thatprovided, however, that such encumbrances or restrictions are not (in the judgment view of the Companyboard of directors of the Company as expressed in a board resolution thereof) materially more restrictive, such incurrence will not materially impair any taken as a whole, than those contained in the Senior Credit Party's ability to make payments under the Obligations when dueFacility;
(xiii11) provisions limiting customary restrictions on the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising the Oil and Gas Business of the types described in connection with any the definition of Permitted LiensBusiness Investments; orand
(xviii12) this Indenture, or any encumbrances or restrictions of the type referred to in clauses (i)agreement, (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingrefinancing that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (11), or in this clause (12); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect taken as a whole than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Sandridge Energy Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in paragraph (b), the Issuer will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or Equity Interests of the Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary or Subsidiary,
(B2) pay any Indebtedness Debt or other obligation owed to the Issuer or any Credit Party;other Restricted Subsidiary,
(ii3) make loans or advances to the Issuer or any Credit Party; other Restricted Subsidiary, or
(iii4) sell, lease or transfer any of its properties property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The restrictions in provisions of Section 9.08(a4.07(a) shall hereof do not apply to any encumbrances or restrictions
(1) existing in the Credit Agreement, this Indenture or any other agreements in effect on the Issue Date, and any amendments, supplements, modifications, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, extension, renewal, replacement or refinancing (other than an amendment, supplement or modification of this Indenture in accordance with its terms) are no more restrictive, taken as a whole, in the good faith judgment of the Issuer, than the encumbrances or restrictions being amended, supplemented, modified, extended, renewed, replaced or refinanced;
(2) existing under or by reason of:of applicable law, rule, regulation or order;
(3) existing
(A) under any agreement or instrument (including those governing Debt (including Acquired Debt) or Capital Stock) of any Person, or otherwise with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Issuer or any Restricted Subsidiary, or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (i) are not applicable Requirements to any other Person or the property or assets of Lawany other Person and (ii) were not put in place in anticipation of or to provide all or any of the credit support utilized to consummate such transaction or series of transactions such event and any amendments, supplements, modifications, extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the amendment, supplement, modification, extension, renewal, replacement or refinancing are no more restrictive, taken as a whole, in any material respect, in the good faith judgment of the Issuer, than the encumbrances or restrictions being amended, supplemented, modified, extended, renewed, replaced or refinanced;
(ii4) of the type described in clause (4) of this Agreement and the other Credit Documents;
(iiiSection 4.07(a) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired arising or agreed to in the ordinary course of business and Financing Lease Obligations (i) that impose restrictions restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license or (ii) by virtue of any Lien on, or agreement to transfer, option or similar right (including any asset sale or stock sale agreement) with respect to, any property or assets of, the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredIssuer or any Restricted Subsidiary;
(v5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is permitted by Section 4.10 hereof, pending the consummation of such sale or disposition;
(6) required pursuant to this Indenture;
(7) existing pursuant to customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or similar Person;
(8) customary provisions consisting of restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(9) any agreement instrument governing any Debt or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into that is an Unrestricted Subsidiary as in effect on the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from date that such Person (but, in any such case, not created in contemplation thereof)becomes a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiarieswho became a Restricted Subsidiary, or the property or assets of the Person so who became a Restricted Subsidiary; provided that, in the case of Debt, the incurrence of such Debt as a result of such Person becoming a Restricted Subsidiary was permitted by the terms of this Indenture;
(10) consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(11) of any Restricted Subsidiary existing pursuant to provisions in instruments governing other Debt, Disqualified Stock or Preferred Stock of Restricted Subsidiaries permitted to be Incurred after the Issue Date pursuant to Section 4.04 hereof; provided that (i) such provisions are customary for instruments of such type (as determined in good faith by the Issuer’s Board of Directors) and (ii) the Issuer determines in good faith that such restrictions will not materially adversely impact the ability of the Issuer to make required principal and interest payments on the Notes;
(12) existing pursuant to purchase money obligations for property acquired in the ordinary course of business and its Subsidiaries or Capital Lease obligations that impose restrictions of the nature described in clause (4) of this Section 4.07(a) on the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x13) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale purchase or other agreement to which the Company Issuer or any of its Restricted Subsidiary Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Issuer or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company Issuer or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary;
(xi14) contained in any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock Debt Incurred or Preferred Stock issued by Foreign Restricted Subsidiaries that is permitted to be incurred subsequent to Incurred after the Second Restatement Effective Issue Date pursuant to Section 9.04 4.04(b)(10) hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii15) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into restrictions on deposits made in connection with a Restricted Investment), which limitation is applicable only license applications or to the assets that are the subject secure letters of such agreements;
(xiv) customary provisions restricting subletting credit or assignment of any lease governing any leasehold interest of the Company surety or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising other bonds issued in connection with cash therewith or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into made in the ordinary course of business with respect to insurance premiums, worker’s compensation, statutory obligations, utility deposits, rental obligations, unemployment insurance, performance of tenders, surety and appeal bonds and other similar obligations (or arising in connection with any Permitted Liensto secure letters of credit or surety or other bonds relating thereto); orand
(xviii16) any encumbrances or restrictions of the type referred to in clauses (i), (iiSection 4.07(a) and (iii) of Section 9.08(a) hereof imposed by any amendments, supplements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii15) of this Section 9.08(b4.07(b); provided that such amendments, supplements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyIssuer, no more restrictive in any material respect with respect to such encumbrance dividend restrictions and other restrictions taken as a whole encumbrances than those contained prior to such amendment, supplement, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Debt Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (DineEquity, Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company, except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw;
(iib) this Agreement Indenture, the Notes and the other Credit Documentsany Guarantees;
(iiic) contractual encumbrances existing on the Second Restatement Effective Dateany Credit Facility;
(ivd) purchase money obligations for property acquired in the ordinary course customary non-assignment provisions of business and Financing Lease Obligations that impose restrictions any contract, license or lease, including any lease governing a leasehold interest of any Restricted Subsidiary of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredCompany;
(ve) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vif) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of manner such agreements are in effect on the Capital Stock or assets of such SubsidiaryIssue Date;
(viig) Indebtedness and Liens otherwise restrictions on the transfer of assets subject to any Lien permitted to be incurred pursuant to Section 9.01 and Section 9.04.under this Indenture imposed by the holder of such Lien;
(viiih) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvij) restrictions arising in connection with cash or other deposits permitted pursuant purchase money obligations (including any Capitalized Lease Obligations) relating to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into property acquired in the ordinary course of business or arising in connection with any Permitted Liens; orbusiness;
(xviiik) any encumbrances an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or restrictions of the type incurred pursuant to an agreement referred to in clauses (ib), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.,
Appears in 1 contract
Sources: Indenture (Nb Finance Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Aa) pay dividends dividends, in cash or otherwise, or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation inStock, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (Bb) pay any Indebtedness owed to the Company or any Credit Party;
other Restricted Subsidiary, (iic) make loans Investments in the Company or advances to any Credit Party; or
other Restricted Subsidiary, (iiid) sell, lease or transfer any of its properties or assets to the Company or any other Restricted Subsidiary or (e) guarantee any Indebtedness of the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable Requirements of Law;
any agreement in effect on the Issue Date, (ii) this Agreement and the other Credit Documents;
applicable law or judicial or regulatory action, (iii) contractual encumbrances existing on customary nonassignment provisions of any lease governing a leasehold interest of the Second Restatement Effective Date;
Company or any Restricted Subsidiary, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person Person, so acquired and its the Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
Person, (viiv) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale mortgage or other agreement to which the Company Lien on real property acquired or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into improved by the Company or any Restricted Subsidiary after the date of this Indenture that prohibit transfers of the type described in (d) above with respect to such real property, (vi) any encumbrance or restriction contained in contracts for sales of assets permitted by Section 10.16 with respect to the assets to be sold pursuant to such contract; (vii) any such customary encumbrance or restriction contained in a security document creating a Permitted Lien to the extent relating to the property or asset subject to such Permitted Lien; (viii) any agreement or other instrument governing any Pari Passu Indebtedness if such encumbrance or restriction applies only (x) to amounts which at any point in time (other than during such periods as are described in clause (y))
(1) exceed amounts due and payable (or which are to become due and payable within 30 days) in respect of the Notes or this Indenture for interest, premium and principal (after giving effect to any realization by the Company under any applicable Currency Agreement), or (2) if paid, would result in an event described in the ordinary course following clause (y) of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customersthis sentence, lenders or suppliers or (iiy) other third parties during the pendency of any event that causes, permits or, after notice or lapse of time, would cause or permit the holder(s) of the Indebtedness governed by such agreement or instrument to declare any such Indebtedness to be immediately due and payable or require cash collateralization or cash cover for such Indebtedness for so long as such cash collateralization or cash cover has not been provided; or (ix) the refinancing of Indebtedness incurred under contracts entered into the agreements described in the ordinary course of business or arising in connection with any Permitted Liens; or
clause (xviiiv) any above, so long as such encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, are no more restrictive less favorable in any material respect with respect to such encumbrance and other restrictions taken as a whole the Company or any Restricted Subsidiary than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingcontained in the respective agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Cd Radio Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any other interest Person or participation in, the property or measured by, its profits or owned assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) pay existing by virtue of any Indebtedness owed transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Credit Party;
(ii) make loans Indebtedness, and that do not, individually or advances to any Credit Party; or
(iii) sellin the aggregate, lease or transfer any detract from the value of its properties property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;; or
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions . 52 45 Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.05 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Sources: Indenture (Powertel Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 3.14(b), the Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or (B) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary;
(ii2) make loans or advances to to, or Guarantee any Credit PartyIndebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a3.14(a) shall will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawlaw;
(ii2) this Agreement and the other Credit DocumentsIndenture;
(iii3) contractual encumbrances existing the Bank Credit Facility as in effect on the Second Restatement Effective Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(iv4) purchase money obligations for property acquired customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in the ordinary course any lease governing a leasehold interest of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof any Restricted Subsidiary, or any customary restriction on the property so acquiredability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v5) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed governing Acquired Indebtedness not Incurred in connection with with, or in anticipation or contemplation of, the acquisition of assets from such Person (butrelevant acquisition, in any such case, not created in contemplation thereof)merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi6) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such SubsidiaryRestricted Subsidiary being sold;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii7) customary provisions in joint venture agreements and other similar agreements restrictions imposed on the transfer of copyrighted or arrangements relating solely to such joint venturepatented materials;
(ix) customary provisions contained 8) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in contractsSection 3.14(b)(5); provided, leases, sub-leases, licenses, sub-licenses or similar agreements, including that such Refinancing agreement is not more restrictive with respect to intellectual property and other agreements, in each case, entered into such encumbrances or restrictions than those contained in the ordinary course of business
agreement referred to in such clause (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary5);
(xi9) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary imposed pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by for the Company sale or any disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary in pending the ordinary course closing of business;
(xvi) restrictions arising in connection with cash such sale or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liensdisposition; or
(xviii10) encumbrances and restrictions affecting any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect Foreign Subsidiary with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingIndebtedness permitted by clause (11) of the definition of “Permitted Indebtedness”.
Appears in 1 contract
Sources: Indenture (Coleman Cable, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party (other than the Guarantors and the Co-Issuer) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party (other than the Guarantors and the Co-Issuer) to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on its Capital Stock (or with respect to any other interest or participation in, or measured by, its profits or owned by profits) to the Company Company, the Co-Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(B2) pay any Indebtedness liabilities owed to the Company, the Co-Issuer or any Credit PartyRestricted Subsidiary;
(ii3) make loans or advances to the Company, the Co-Issuer or any Credit PartyRestricted Subsidiary (it being understood that the subordination of loans or advances made to the Company, the Co-Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company, the Co-Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(iii4) sell, lease or transfer any of its properties or assets to the Company Company, the Co-Issuer or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.10(a) shall will not apply to encumbrances or restrictions existing under or under, by reason ofof or with respect to:
(i1) applicable Requirements of Law;
(ii) this Agreement and the Existing Indebtedness or any other Credit Documents;
(iii) contractual encumbrances existing agreements in effect on the Second Restatement Effective Issue Date and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, taken as a whole, are not, as determined by the Company or a direct or indirect parent of the Company in good faith, materially more restrictive than those contained in the Existing Indebtedness or such other agreements, as the case may be, as in effect on the Issue Date;
(iv2) purchase money obligations for property acquired in this Indenture, the ordinary course of business Notes and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on Note Guarantees and other documents relating to this Indenture, the property so acquiredNotes or the Note Guarantees;
(v3) applicable law, rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary that was in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi5) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(vii6) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii7) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) affect the Issuers’ ability to make anticipated principal or interest payment on the Notes in any material respect (in each case as determined by the Issuers or a direct or indirect parent of the Company in good faith);
(8) encumbrances or restrictions that restrict distributions or transfers by a Restricted Subsidiary if such restrictions exist under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, that Restricted Subsidiary and are pending such sale or other disposition;
(9) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent imposing restrictions of the type described in clause (4) of Section 4.10(a) on the property subject to such lease;
(10) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of businessbusiness and which the Board of Directors of the Company or a direct or indirect parent of the Company determines in good faith will not adversely affect the Issuers’ ability to make payments of principal or interest on the Notes;
(11) Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.06 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(12) any agreement or instrument relating to Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary permitted to be Incurred under this Indenture following the Issue Date if (A) the encumbrances or restrictions are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Company or a direct or indirect parent of the Company) and (B) either (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company determines that such encumbrance or any Restricted Subsidiary is restriction will not adversely affect the Issuers’ ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a party default in respect of a payment or financial maintenance covenant default in respect of such Indebtedness;
(13) customary provisions in (x) joint venture agreements entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction business with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent Equity Interests subject to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
joint venture and (xiiiy) provisions limiting the disposition operating or distribution of assets or property in asset sale other similar agreements, sale-leaseback agreements, stock asset sale agreements and other similar agreements (including stock sale agreements entered into in connection with a Restricted Investment)the entering into of such transaction, which limitation is applicable only to the assets that are the subject of such those agreements;
(xiv14) customary provisions restricting subletting purchase money obligations for property acquired, IRUs and Finance Lease Obligations in the ordinary course of business to the extent imposing restrictions on the property so acquired;
(15) any encumbrance or assignment restriction of any lease governing any leasehold interest a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary and its assets;
(16) other Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted SubsidiarySubsidiary that is Incurred subsequent to the Issue Date pursuant Section 4.03; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuers’ ability to make anticipated principal or interest payment on the Notes (as determined by the Issuers or a direct or indirect parent of the Company in good faith);
(xv17) customary provisions restricting assignment of any agreement entered into Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the agreements governing that Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced (as determined by the Company or any Restricted Subsidiary a direct or indirect parent of the Company in the ordinary course of businessgood faith);
(xvi18) restrictions arising in connection with cash or other deposits Indebtedness of non-Guarantor Subsidiaries permitted to be Incurred pursuant to the provisions of Section 9.014.03; and
(xvii19) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company or a direct or indirect parent of the Company, no not materially more restrictive in any material respect as a whole with respect to such encumbrance and other encumbrances or restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (a) (i) (A) pay dividends or make any other distributions to the Company or any Credit Party of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary profits, or (Bii) pay any Indebtedness owed to the Company or any Credit Party;
of its Restricted Subsidiaries, (iib) make loans or advances or capital contributions to the Company or any Credit Party; or
of its Restricted Subsidiaries, or (iiic) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
reasons of (i) applicable Requirements Existing Indebtedness as in effect on the date of Law;
the Original Indenture, (ii) this the Credit Agreement, provided that the encumbrances or restrictions contained in such agreement as amended, modified, supplemented, restructured, renewed, restated, refunded, replaced or refinanced or extended from time to time on one or more occasions are no more restrictive than those contained in the Credit Agreement and as in effect on the other Credit Documents;
date of the Original Indenture, (iii) contractual encumbrances existing on the Second Restatement Effective Date;
Original Indenture and the Existing Notes and this Indenture and the Notes, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
applicable law, (v) any agreement instrument governing Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiaries or of any Person that becomes a Restricted Subsidiary as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any such Person becoming a Restricted Subsidiary or assumed (except to the extent such Indebtedness was incurred in connection with the or in contemplation of such acquisition of assets from or such Person (but, in any such case, not created in contemplation thereofbecoming a Restricted Subsidiary), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
, provided that the Consolidated Cash Flow of such Person is not taken into account (to the extent of such restriction) in determining whether such acquisition was permitted by the terms of this Indenture, (vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
nature described in clause (viic) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or above by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into customary non-assignment provisions in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts leases entered into in the ordinary course of business or arising and consistent with past practices, (vii) purchase money obligations for property acquired in connection with any Permitted Liens; or
(xviii) any encumbrances or the ordinary course of business that impose restrictions of the type referred to nature described in clauses this clause (i)c) above on the property so acquired, (iiviii) and (iii) of Section 9.08(a) imposed by any amendmentsPermitted Refinancing Indebtedness, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, the restrictions contained in the good faith judgment of the Company, agreements governing such Permitted Refinancings are no more restrictive than those contained in any material respect with respect the agreements governing the Indebtedness or Disqualified Stock being refinanced, or (ix) customary restrictions in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such encumbrance security agreements and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingmortgages.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not of the Company, other than a Credit Party Restricted Subsidiary party to a Permitted Omega Refinancing Transaction, to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company
(a) on its Capital Stock or Stock, or
(b) with respect to any other interest or participation in, or measured by, its profits profits;
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Partyof the Company;
(ii3) make loans or advances or capital contributions to the Company or any Credit Partyof its Restricted Subsidiaries; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries; except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawencumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions were in effect on the Issue Date, including without limitation, pursuant to the Credit Agreement;
(ii2) this Agreement Indenture, the Notes, the Exchange Notes and the other Credit DocumentsGuarantees;
(iii3) contractual encumbrances existing on the Second Restatement Effective Dateapplicable law;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
(vi5) contracts for customary non-assignment provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness consistent with past practice;
(6) Refinancing Indebtedness; provided that such restrictions are not materially more restrictive than those contained in the agreements governing the Indebtedness being refunded, including refinanced or extended;
(7) customary restrictions in security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(vii9) Indebtedness and Liens otherwise permitted provisions with respect to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii10) any other agreement, instrument or document relating to Senior Indebtedness now or hereafter in effect, provided that the terms and conditions of such encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no are not materially more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement encumbrances or refinancingrestrictions imposed in connection with the Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Mariner Health Care Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party toSubsidiary:
(i1) (A) to pay dividends (in cash or otherwise) or make any other distributions to any Credit Party on in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or (B) pay any Indebtedness Debt or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii2) to make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or otherwise to transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The Notwithstanding the restrictions in Section 9.08(a) shall not apply 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions existing under or by reason ofrestriction:
(i1) applicable Requirements of Lawpursuant to any agreement in effect on the Issue Date (including the Credit Facilities);
(ii2) pursuant to this Agreement Indenture, the Notes and the other Credit DocumentsSubsidiary Guarantees;
(iii3) contractual encumbrances pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Second Restatement Effective DateIssue Date or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred in connection with, or anticipation of, becoming a Restricted Subsidiary; provided that the Incurrence of such Debt was permitted under Section 4.9;
(iv4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) customary restrictions in leases (including capital leases), subleases, licenses, sublicenses, security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii3) of Section 9.08(a) hereof on the property so acquired4.8(a);
(v7) any agreement or other instrument of a Person acquired by or merged or consolidated with or into Liens permitted to be incurred pursuant to Section 4.12 that limit the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets right of the Person so acquired and its Subsidiaries or debtor to dispose of the property or assets so acquiredsubject to such Liens;
(vi) contracts for the sale of assets, including customary restrictions 8) with respect to a Subsidiary of the Company Restricted Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(vii9) Indebtedness and Liens in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be incurred Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to Section 9.01 and Section 9.04.agreements in effect on the Issue Date or those contained in this Indenture or the Credit Facilities, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(viii11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries;
(12) if such encumbrance or restriction is the result of applicable laws or regulations;
(13) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x14) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale on cash or other agreement to which the Company or any Restricted Subsidiary is a party deposits imposed by customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;or
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv15) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Playtika Holding Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Ai)(a) pay dividends or make any other distributions to the Company or any Credit Party of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary profits, or (Bb) pay any Indebtedness owed to the Company or any Credit Party;
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or any Credit Party; or
of its Restricted Subsidiaries or (iii) sell, lease or transfer 57 any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
of (ia) Existing Indebtedness as in effect on the date of the Indenture, (b) the Indenture, (c) applicable Requirements of Law;
law or state insurance regulations, (ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement instrument governing Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary Subsidiaries as in existence effect at the time of such acquisition or at (except to the time it merges with or into the Company or any Restricted Subsidiary or assumed extent such Indebtedness was incurred in connection with the acquisition of assets from such Person (but, in any such case, not created or in contemplation thereofof such acquisition or in violation of the covenant described in Section 3.09), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and (including its Subsidiaries), or the property or assets of the Person so acquired and (including its Subsidiaries or the property or assets Subsidiaries), so acquired;
(vi) contracts for , provided that the sale Consolidated EBITDA of assets, including customary restrictions with respect to a Subsidiary such Person is not taken into account in determining whether such acquisition was permitted by the terms of the Company pursuant Indenture except to an agreement the extent that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise Consolidated EBITDA would be permitted to be incurred pursuant dividended to Section 9.01 and Section 9.04.
the Company without the prior consent or approval of any third party, (viiie) customary any operating lease or capital lease, insofar as the provisions in joint venture agreements and thereof limit grants of a security interest in, or other similar agreements or arrangements relating solely assignments of, the related leasehold interest to such joint venture;
any other Person, (ixf) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual purchase money obligations for property and other agreements, in each case, entered into acquired in the ordinary course of business
business that impose restrictions of the nature described in clause (xiii) above on the property so acquired, (g) Permitted Refinancing Indebtedness, provided that the restrictions or conditions contained in any tradingthe agreements governing such Permitted Refinancing Indebtedness are no more restrictive than those contained in the agreements governing the Indebtedness being refinanced, nettingor (h) the Credit Agreement and related docu mentation as the same is in effect on the date of the Indenture and as amended or replaced from time to time, operating, construction, service, supply, purchase, sale provided that no such amendment or other agreement replacement is more restrictive as to which the matters enumerated above than the Credit Agreement and related documentation as in effect on the date of the Indenture. Nothing contained in this paragraph shall prevent the Company or any Restricted Subsidiary is a party entered from entering into any agreement resulting in the ordinary course incurrence of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock Liens otherwise permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing3.11.
Appears in 1 contract
Sources: Indenture (Vencor Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company
(a) on its Capital Stock or or
(b) with respect to any other interest or participation in, or measured by, its profits or
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;of the Company,
(ii3) make loans or advances or capital contributions to the Company or any Credit Party; of its Restricted Subsidiaries or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date;,
(iv2) purchase money obligations for property the Indenture, the Notes and the Guarantees,
(3) applicable law,
(4) contracts to which any Person who is acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection accordance with the acquisition terms of assets from such Person (butthis Indenture is a party, in including any such case, not created in contemplation thereof)instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person (including any Subsidiary of the Person), so acquired acquired,
(5) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and its Subsidiaries consistent with past practices,
(6) Refinancing Indebtedness; PROVIDED that such restrictions are no more restrictive than those contained in the agreements governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded,
(7) customary restrictions in Capitalized Lease Obligations, security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets so acquired;subject to such Capitalized Lease Obligations, security agreements and mortgages,
(vi) contracts for the sale of assets, including 8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the any Capital Stock or assets of such Restricted Subsidiary;, but only to the extent such encumberance or restriction applies only to the Capital Stock or assets being sold or otherwise disposed of,
(vii9) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, contracts entered into in the ordinary course of business
(x) restrictions , not relating to any Indebtedness, and that do not, individually or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course aggregate, detract from the value of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any Restricted Subsidiary that are the subject in any manner material to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;,
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii10) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts (not evidencing or relating to Indebtedness) entered into the ordinary course of business,
(11) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business business,
(12) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or arising in connection with any Permitted Liens; Restricted Subsidiary, or
(xviii13) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to a Receivables Subsidiary, an agreement relating to Indebtedness of such encumbrance and other restrictions taken as Receivables Subsidiary which is permitted under Section 4.10 or pursuant to an agreement relating to a whole than those prior to Permitted Receivables Financing by such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingReceivables Subsidiary.
Appears in 1 contract
Sources: Indenture (Buslease Inc /New/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (Aa) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits profits, or
(b) repay any Debt or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;Subsidiary, or
(iic) make loans or advances or Capital Contributions to the Company or any Credit Party; Restricted Subsidiary, or
(iiid) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in , Notwithstanding the foregoing, this Section 9.08(a) 10.10 shall not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Outstanding 2016 Notes Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Outstanding 2016 Notes Issue Date;,
(iv2) purchase money obligations for property acquired encumbrances or restrictions in (1) any Credit Facilities (other than a Borrowing Base Facility) to the extent and in the ordinary course of business manner such encumbrances and Financing Lease Obligations that impose restrictions are in effect on the Outstanding 2016 Notes Issue Date, and (2) any Borrowing Base Facility,
(3) this Indenture, the Notes, any Guarantees, the indenture governing Outstanding 2016 Notes, the Outstanding 2016 Notes, any guarantees thereof or any of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;Collateral Documents,
(v4) any applicable law, rule, regulation, or order required by any governmental authority,
(5) any instrument governing Acquired Debt, or other agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary Subsidiary, as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person (including any Subsidiary of the Person), so acquired acquired,
(6) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and its Subsidiaries consistent with past practices, and customary restrictions imposed on the transfer and assignment of intellectual property,
(7) Refinancing Debt; provided, that such restrictions are not on the whole materially more restrictive than those contained in the agreements governing the Debt being extended, refinanced, renewed, replaced, defeased or refunded,
(8) restrictions in security agreements or mortgages securing Debt of the Company or a Restricted Subsidiary only to the extent such restrictions restrict the transfer of the property or assets so acquired;subject to such security agreements and mortgages,
(vi9) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;Restricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the Capital Stock or assets to be sold or disposed of,
(vii10) Indebtedness purchase money obligations for property acquired in the ordinary course of business and Liens Capitalized Lease Obligations in each case that impose restrictions of the nature described in clause (d) of this Section 10.10 on the property so acquired,
(11) any agreement for the sale of assets (including any Asset Sale) that restricts transfers of such assets pending their sale,
(12) secured Debt otherwise permitted to be incurred pursuant to the provisions of the covenant described above under Section 9.01 and Section 9.04.10.07 that limits the right of the debtor to dispose of the assets securing such Debt,
(viii13) customary provisions any encumbrance or restriction contained in joint venture agreements Purchase Money Debt to the extent that such encumbrance or restriction (A) only restricts the transfer of the Property financed with such Purchase Money Debt and other similar agreements or arrangements relating (B) solely relates to the Property financed with such joint venture;Purchase Money Debt,
(ix14) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses restrictions on cash or similar agreements, including with respect to intellectual property and other agreements, in each case, deposits imposed by customers under contracts entered into in the ordinary course of business,
(x15) customary encumbrances or restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to existing under or by reason of an agreement that such Subsidiary is a party to provisions in joint venture or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtednesssimilar agreements, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into sale and leaseback transactions required in connection with a Restricted Investment)the entering into of such transactions, which limitation is encumbrances and restrictions are applicable only to the assets that are the subject of such agreements;,
(xiv16) customary provisions restricting subletting or assignment of any lease governing any leasehold interest agreements entered into between a Restricted Subsidiary and another Restricted Subsidiary which second Restricted Subsidiary is not a Subsidiary of the Company first Restricted Subsidiary provided, that such agreement does not limit dividends or any distributions to the direct parent or direct subsidiary of either such Restricted Subsidiary;,
(xv17) customary provisions restricting assignment restrictions contained in any Debt incurred in compliance with Section 10.05, provided, that, such restrictions, taken as a whole, are, in the good faith judgment of any agreement entered into by the Company’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (1), (2) and (3) above and the Company determines in good faith that any such restriction will not affect the Company's ability to make principal or any Restricted Subsidiary in interest payments on the ordinary course of business;Notes,
(xvi18) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising created in connection with any Permitted Liens; Receivables Facility solely with respect to the Subsidiary which is the holder of the applicable receivables, or
(xviii19) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b); provided above, provided, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no not materially more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than that those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. Nothing contained in this Section 10.10 shall prevent the Company or any Restricted Subsidiary from creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 10.07.
Appears in 1 contract
Sources: Indenture (Catalyst Paper Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in paragraph (b), the Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or Equity Interests of the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or (B) pay any Indebtedness owed liquidating distributions prior to any Credit Partydividends or liquidating distributions paid on Common Stock shall not be deemed to be a restriction on the ability to make distributions on Capital Stock);
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in provisions of Section 9.08(a4.10(a) shall do not apply to any encumbrances or restrictions
(1) in this Indenture, the Notes, the Note Guarantees or any other agreements in effect on the Issue Date;
(2) existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions existing under are not applicable to any other Person or by reason of:the property or assets of any other Person;
(i) applicable Requirements pursuant to customary provisions in agreements and documents relating to the ordinary course sales and transfer of Lawthe Company’s products and services, including in any leases, licenses, and other similar agreements entered into in the ordinary course of business; (ii) relating to contracts entered into in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of any Restricted Subsidiary in any manner material to any such Restricted Subsidiary; or (iii) on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(ii4) this Agreement and pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the other Credit DocumentsCompany or any Restricted Subsidiary;
(iii5) contractual pursuant to Purchase Money Debt or Capital Lease obligations permitted by this Indenture that impose encumbrances existing or restrictions on the Second Restatement Effective Dateproperty or assets so acquired;
(iv6) purchase money obligations (i) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property acquired and assets of, the Restricted Subsidiary that is permitted by Section 4.13 pending the sale or other disposition; and (ii) limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements, or customary provisions in partnership agreements, limited liability company organizational governance documents, and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company or similar Person;
(7) pursuant to customary provisions in joint venture agreements and Financing Lease Obligations other similar agreements, relating solely to the relevant joint venture or other similar arrangement;
(8) existing under or by reason of applicable law, rule, regulation, order, approval, license, permit or similar restriction or required by any regulatory or governmental authority;
(9) (i) that restrict the subletting, assignment or transfer of any property or asset or right and is contained in any lease, license or other contract entered into in the ordinary course of business or the assignment or transfer of any such lease, license or other contract, (ii) pursuant to provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any of its Restricted Subsidiaries entered into in the ordinary course of business or (iii) that relate to Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(10) arising under or in connection with any agreement or instrument relating to any Debt permitted to be Incurred after the Issue Date pursuant to Section 4.06; provided that the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to pay principal or interest on the Notes;
(11) relating to Debt, Disqualified Equity Interests or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 4.06 that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof solely on the property so acquiredForeign Subsidiaries party thereto or their Subsidiaries;
(v12) relating to any agreement instrument governing Debt or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary Subsidiaries as in existence effect at the time of such acquisition (except to the extent such Debt or at the time it merges with or into the Company or any Restricted Subsidiary or assumed Capital Stock was incurred in connection with the acquisition of assets from such Person (but, in any such case, not created or in contemplation thereofof such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a13) imposed by any extensions, renewals, replacements, amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements supplements or refinancings of the contracts, instruments or obligations referred to above in clauses (i1) through (xvii) of this Section 9.08(b11); provided that such extensions, renewals, replacements, amendments, modifications, restatementssupplements or refinancings are not materially more restrictive, with respect to encumbrances or restrictions set forth in clause (a) above, taken as a whole, than such encumbrances and restrictions prior to such extensions, renewals, increasesreplacements, supplementsamendments, refundingsmodifications, replacements supplements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingrefinancings.
Appears in 1 contract
Sources: Indenture (Aci Worldwide, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective or enter into any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on its Capital Stock Interests owned by the Company or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits profits, or owned pay any Debt or other obligations owed to the Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Interests in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Interests shall not be deemed a restriction on the ability to make distributions in Capital Interests);
(2) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed shall not be deemed a restriction on the ability to any Credit Party;
(ii) make loans or advances to any Credit Partyadvances); or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.12(a) shall will not apply to the following encumbrances or restrictions (including those existing under or by reason of:):
(i) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii1) contractual encumbrances existing or restrictions pursuant to any Debt Facilities and related documentation and other agreements or instruments in effect at or entered into on the Second Restatement Effective Issue Date;
(iv2) purchase money obligations for property acquired in any encumbrance or restriction under this Indenture, the ordinary course of business Security Documents, the Notes and Financing Lease Obligations that impose restrictions the Note Guarantees;
(3) any encumbrance or restriction existing at the time of the nature discussed in clause (iii) acquisition of Section 9.08(a) hereof on property, so long as the encumbrances or restrictions relate solely to the property so acquiredacquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(v4) any agreement encumbrance or other instrument of restriction which exists with respect to a Person acquired by that becomes a Restricted Subsidiary or merged or consolidated merges with or into a Restricted Subsidiary of the Company on or any Restricted Subsidiary after the Issue Date, which is in existence at the time of such acquisition Person becomes a Restricted Subsidiary or at the time it merges with or into a Restricted Subsidiary, but not created in connection with or in anticipation of such Person becoming a Restricted Subsidiary or merging with or into a Restricted Subsidiary, and which is not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person;
(5) any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, refunding, replacement, refinancing or extension of Debt issued pursuant to an agreement containing any encumbrance or restriction referred to in the foregoing clauses (1) through (4), so long as such encumbrances and restrictions contained in any such agreement are not materially more restrictive, taken as a whole, with respect to such encumbrances and restrictions than those contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or extended in the good faith judgment of the Company;
(6) customary provisions restricting subletting or assignment of any lease, sublease, contract, or license of the Company or any Restricted Subsidiary or assumed provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(7) any encumbrance or restriction by reason of applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(8) any encumbrance or restriction in connection with the acquisition sale of assets from or Capital Interests, including, without limitation, any agreement for the sale or other disposition of a Subsidiary that restricts distributions by that Subsidiary pending its sale or other disposition;
(9) restrictions on cash and other deposits or net worth imposed by customers or suppliers under contracts entered into the ordinary course of business;
(10) encumbrances and restrictions under any instrument governing Debt or Capital Interests of a Person acquired by the Company or any of the Restricted Subsidiaries as in effect at the time of such Person acquisition (but, except to the extent such Debt or Capital Interests were Incurred or issued in any such case, not created connection with or in contemplation thereofof such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired; provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be Incurred;
(vi11) contracts for the sale of assets, including customary encumbrances or restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) are customary provisions in joint venture agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements or arrangements relating solely to such joint ventureagreements;
(ix12) customary provisions contained encumbrances and restrictions arising in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, respect of purchase money obligations (including with respect to intellectual Capital Lease Obligations) for property and other agreementsacquired in the ordinary course of business permitted under this Indenture, in each case, to the extent such restrictions and encumbrances limit the right of the debtor to dispose of assets subject to such Liens and apply to the property so acquired (and proceeds thereof);
(13) Liens securing Debt or other obligations otherwise permitted to be Incurred under this Indenture, including pursuant to the provisions of Section 4.10 that limit the right of the debtor to dispose of assets subject to such Liens;
(14) encumbrances or restrictions relating to any Non-Recourse Receivable Subsidiary Debt or any other contractual requirements in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the accounts receivable and related assets described in the definition of Qualified Receivables Transaction which are subject to such Qualified Receivables Transaction;
(15) any other agreement governing Debt entered into after the Issue Date in compliance with Section 4.09 that contains encumbrances and restrictions that are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to any agreements in effect on the Issue Date or that do not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes;
(16) restrictions on the sale, lease or transfer of property or assets arising or agreed to in the ordinary course of business
(x) restrictions , not relating to any Debt, and that do not, individually or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course aggregate, detract from the value of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in any manner material to the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01Company and the Restricted Subsidiaries, taken as a whole; and
(xvii17) encumbrances or restrictions on cash arising under deferred compensation arrangements or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising any “rabbi trust” formed in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingarrangement.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in paragraph (b), the Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or Equity Interests of the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary,
(B2) pay any Indebtedness Debt or other obligation owed to the Company or any Credit Party;other Restricted Subsidiary,
(ii3) make loans or advances to the Company or any Credit Party; other Restricted Subsidiary, or
(iii4) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(aprovisions of paragraph (a) shall do not apply to any encumbrances or restrictions
(1) existing on the Issue Date in the Credit Agreement, the Indenture or any other agreements or instruments in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, not materially less favorable to the Noteholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) law, rule, regulation or order, or required by any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or assumed in connection any of their businesses;
(3) existing (including, without limitation, as part of the terms of any Acquired Debt)
(A) with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable respect to any Person, or to the properties property or assets of any Person, other than at the time the Person so is acquired and its Subsidiariesby the Company or any Restricted Subsidiary, or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, and any extensions, renewals, replacements or refinancings of any of the Person so acquired foregoing, provided the encumbrances and its Subsidiaries restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, not materially less favorable to the Noteholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture, (C) contained in mortgages, pledges or other security agreements securing Debt of a Restricted Subsidiary (permitted by the Indenture) to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to purchase money obligations or Capital Lease obligations (permitted by the Indenture) that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements, including, without limitation, any joint venture agreements, and instruments entered into in the ordinary course of business (including but not limited to leases, sale and leaseback agreements, asset sale agreements and joint venture and other similar agreements entered into in the ordinary course of business), or (H) pursuant to customary provisions in Hedging Agreements, permitted by the Indenture;
(vi5) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of the Company its property or assets) and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of such Subsidiaryof, the Restricted Subsidiary that is permitted by Section 4.13;
(vii6) Indebtedness and Liens otherwise contained in the terms governing any Permitted Refinancing Debt if (as determined in good faith by the Board of Directors) the encumbrances or restrictions are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(7) any customary encumbrances or restrictions contained in (i) any Credit Facilities extended to any Foreign Subsidiary of the Company permitted to be incurred pursuant to Section 9.01 and Section 9.04.
Incurred under the Indenture or (viiiii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contractsDebt, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Preferred Stock or Preferred Disqualified Stock permitted to be incurred subsequent to Incurred under the Second Restatement Effective Date pursuant to Section 9.04 hereofIndenture; provided that, that the Board of Directors determines in the judgment of good faith that such restrictions will not have a material adverse effect on the Company, such incurrence will not materially impair any Credit Party's ’s ability to make payments under pay principal and interest on the Obligations when dueNotes;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into 8) any customary restrictions imposed in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted LiensSecuritization Financing; or
(xviii9) any encumbrances or restrictions of required pursuant to the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingIndenture.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company
(a) on its Capital Stock or Stock, or
(b) with respect to any other interest or participation in, or measured by, its profits profits, or;
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Partyof the Company;
(ii3) make loans or advances or capital contributions to the Company or any Credit Partyof its Restricted Subsidiaries; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries; except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions were in effect on the Issue Date, including without limitation pursuant to the Senior Credit Facility and any amendment, modification, restatement, renewal, increases, supplements, refundings, replacements or refinancing thereof; PROVIDED that any of Lawthe foregoing are not materially more restrictive than those in effect on the Issue Date,
(2) this Indenture, the Notes and the Guarantees;
(ii3) this Agreement and the other Credit Documentsapplicable law, rules or regulations;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
(vi5) contracts for customary provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness;
(6) Refinancing Indebtedness; PROVIDED that such restrictions are not materially more restrictive than those contained in the agreements governing the Indebtedness being extended, including refinanced, renewed, replaced, defeased or refunded;
(7) customary restrictions in security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi9) any encumbrance agreement relating to a Sale and Lease-Back Transaction, a Capitalized Lease Obligation or restriction Purchase Money Indebtedness, but only on the property subject to such Sale and Lease-Back Transaction, Capitalized Lease Obligation or Purchase Money Indebtedness and only to the extent that such restrictions or encumbrances are customary with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to Sale and Lease-Back Transaction, Capitalized Lease Obligation or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such SubsidiaryPurchase Money Indebtedness;
(xii10) any other Indebtednessagreement, Disqualified Stock instrument or Preferred Stock permitted document relating to be incurred subsequent to Senior Indebtedness hereafter in effect, PROVIDED that the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements terms and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject conditions of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no are not materially more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior encumbrances or restrictions imposed in connection with the Senior Credit Facility as in effect on the date of this Indenture (which may result in encumbrances or restrictions which are not more restrictive than those applicable to the Company at a Restricted Subsidiary); or
(11) encumbrances or restrictions contained in any Indebtedness incurred by a Foreign Subsidiary that apply only to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingForeign Subsidiary.
Appears in 1 contract
Sources: Indenture (Norcross Capital Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Lawlaw, rule or regulation;
(ii) the Notes, Guarantees, this Agreement and Indenture or the other Credit DocumentsCollateral Agreements;
(iii) contractual encumbrances existing on customary provisions restricting assignment, subletting, transfer or license of any property or assets subject to a lease, license or similar agreement of any Restricted Subsidiary of the Second Restatement Effective DateCompany entered into in the ordinary course of business;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and or its Subsidiaries, Subsidiaries or the property properties or assets of the Person so acquired and its Subsidiaries Subsidiaries;
(v) the Credit Agreement (and all amendments, supplements, modifications, replacements or substitutions thereof on terms with respect to such encumbrances or restrictions that, taken as a whole, are, in the property or assets so acquiredgood faith judgment of the Company), not materially more restrictive to the Company and its Restricted Subsidiaries);
(vi) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of manner such agreements are in effect on the Capital Stock or assets of such SubsidiaryIssue Date;
(vii) Indebtedness and Liens otherwise restrictions on the transfer of assets subject to any Lien permitted to be incurred pursuant to Section 9.01 and Section 9.04.under this Indenture;
(viii) customary any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(ix) provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvix) the terms of the Purchase Money Indebtedness or Capitalized Lease Obligations not incurred in violation of this Indenture; provided, that such restrictions arising in connection relate only to the assets financed with cash or other deposits permitted pursuant to Section 9.01; andsuch Indebtedness;
(xviixi) Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Refinancing Indebtedness, taken as a whole, are, in the good faith judgment of the Company, not materially more restrictive to the Company and its Restricted Subsidiaries than those contained in the agreements governing the Indebtedness being refinanced, extended, renewed, refunded, replaced, defeased or discharged;
(xii) the terms of other Indebtedness incurred in compliance with Section 4.08; provided that such restrictions, taken as a whole, are, in the good faith judgment of the Company, not materially more restrictive with respect to such encumbrances and restrictions than the most restrictive of the existing agreements referenced in clauses (ii), (v) and (vi) above;
(xiii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts or other arrangements entered into or agreed to in the ordinary course of business or arising in connection with any Permitted Liens; orbusiness;
(xviiixiv) restrictions on any Foreign Restricted Subsidiary resulting from the operation of covenants contained in documentation governing Indebtedness of such Subsidiary permitted under this Indenture;
(xv) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to or contained in any amendment, supplement or modification to, an agreement referred to in clause (ii), (iv), (v), (vi), (x) or (xii) above; provided, however, that the encumbrances or restrictions of the type referred to contained in clauses (i)any such Indebtedness or such amendment, (ii) and (iii) of Section 9.08(a) imposed by any amendmentssupplement or modification, modificationstaken as a whole, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more materially restrictive in any material respect with respect to the Company and its Restricted Subsidiaries than the provisions relating to such encumbrance and other restrictions taken as a whole than those prior or restriction contained in agreements referred to in such amendmentclause(ii), modification(iv), restatement(v), renewal(vi), increase, supplement, refunding, replacement (x) or refinancing(xii).
Appears in 1 contract
Sources: Indenture (American Apparel, Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries other than a Restricted Subsidiary that is not has executed a Credit Party guarantee to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock (it being understood that the priority of any Preferred Stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, or measured by, its profits or owned by liquidating distributions being paid on Common Stock shall not be deemed a restriction on the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed ability to any Credit Partymake distributions on Capital Stock);
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other of its Restricted Subsidiaries; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw, rule, regulation, order, grant or governmental permit;
(iib) this Agreement Indenture, the Notes, the Exchange Notes, the Guarantees and the other Credit DocumentsSecurity Agreement;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) the Credit Agreement and other agreements governing existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided, that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date;
(f) agreements existing or entered into on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(g) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (b), (d) or (e) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (b), (d) or (e);
(h) purchase money obligations for property acquired in the ordinary course of business or Capitalized Lease Obligations that impose customary restrictions on the property so acquired or leased;
(i) contracts for the sale of assetsassets of capital stock, including including, without limitation, customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(viij) secured Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 4.12 and Section 9.04.4.18 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(viiik) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvil) customary net worth and restrictions arising on transfer, assignment or subletting provisions contained in connection with cash leases and other agreements entered into by the Company or other deposits any of its Restricted Subsidiaries;
(m) any agreement governing Indebtedness permitted to be incurred pursuant to Section 9.014.12; andprovided that the provisions relating to such encumbrance or restriction contained in such Indebtedness, taken as a whole, are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in its reasonable and good faith judgment that the provisions contained in the Credit Agreement or in this Indenture as in effect on the Issue Date;
(xviin) Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being Refinanced;
(o) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers of the Company under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liensbusiness; orand
(xviiip) any encumbrances or restrictions with respect to a Subsidiary of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings Company that was not a Subsidiary of the contracts, instruments Company on the Issue Date in existence at the time such Person becomes a Subsidiary of the Company (but not created as a result of or obligations referred to in clauses (i) through (xvii) anticipation of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment Person becoming a Subsidiary of the Company); provided, no more restrictive in that such restrictions are not applicable to any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement Person or refinancingthe properties or assets of any other Person.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuers shall not, and shall not permit any of their Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
of the Issuers to (i) (Aa)(i) pay dividends or make any other distributions to the Issuers or any Credit Party Restricted Subsidiary of the Issuers (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by (ii) repay any Indebtedness or any other obligation owed to the Company Issuers or any Restricted Subsidiary or of the Issuers, (B) pay any Indebtedness owed to any Credit Party;
(iib) make loans or advances or capital contributions to the Issuers or any Credit Party; or
of their Restricted Subsidiaries or (iiic) sell, lease or transfer any of its properties or assets to the Company Issuers or any of their Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable Requirements of Law;
encumbrances or restrictions existing on the Series A/B Issue Date to the extent and in the manner such encumbrances and restrictions were in effect on the Series A/B Issue Date (including without limitation pursuant to the Senior Credit Facility or under the Series A/B Notes or the Discount Notes), (ii) this Agreement the Indenture, the Notes and the other Credit Documents;
Guarantees, (iii) contractual encumbrances existing on the Second Restatement Effective Date;
applicable law, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
, (v) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and consistent with past practices, (vi) contracts for Refinancing Indebtedness; provided that such payment restrictions are no more restrictive than those contained in the sale agreements governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, (vii) customary restrictions in security agreements or mortgages securing Indebtedness of assets, including the Issuers or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages or (viii) customary restrictions with respect to a Restricted Subsidiary of the Company Issuers pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions distribution to the Company or any Credit Party Restricted Subsidiary on its Capital Stock (it being understood that the priority of any Preferred Equity Interests in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock) or with respect to any other interest or participation in, or measured by, its profits profits, or owned pay any Indebtedness owed to the Company or any Restricted Subsidiary;
(2) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed shall not be deemed a restriction on the ability to any Credit Party;
(ii) make loans or advances to any Credit Partyadvances); or
(iii3) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.08(a) shall hereof will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements Existing Indebtedness and existing agreements as in effect on the date of Lawthis Indenture (including, without limitation, any Credit Facilities, the indenture governing the Existing Notes, the Existing Notes and related guarantees, the Indenture, the Notes and the Guarantees or in agreements governing Indebtedness incurred by the Partnership Parks pursuant to clause (25) of Section 4.09(b));
(ii2) this Agreement and the other Credit Documentsapplicable law, rule, regulation or order;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v3) any instrument governing Acquired Debt and any other agreement or other instrument of a an acquired Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary of its Subsidiaries as in existence effect at the time of acquisition (except to the extent such acquisition Indebtedness or at the time it merges with other agreement or into the Company or any Restricted Subsidiary or assumed instrument was incurred in connection with the acquisition of assets from such Person (butwith, in any such case, not created or in contemplation thereofof, such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person Person, so acquired and or any of its Subsidiaries or the property or assets so acquiredSubsidiaries;
(vi4) contracts for Refinancing Indebtedness (as defined under Section 4.09 hereof); provided that the sale of assets, including customary restrictions with respect to a Subsidiary contained in the agreements governing such Refinancing Indebtedness are no more restrictive than those contained in the agreements governing the Indebtedness being refinanced;
(5) agreements governing Indebtedness of the Company pursuant to an agreement ranking pari passu with the Notes; provided that has been entered into for except as set forth in clause (18) below such restrictions are no more restrictive taken as a whole than those imposed by this Indenture and the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryNotes;
(vii6) agreements governing other Indebtedness and Liens otherwise permitted to be incurred pursuant under the provisions of Section 4.09 hereof; provided that the restrictions therein will not materially adversely impact the Company’s ability to Section 9.01 and Section 9.04.
make required principal or interest payments on the Notes (viii) customary provisions as determined by the Company in joint venture agreements and other similar agreements or arrangements relating solely to such joint venturegood faith);
(ix7) customary non-assignment provisions contained in contracts, leases, sub-leases, licenses, sub-leases and licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x) restrictions or conditions contained in 8) any trading, netting, operating, construction, service, supply, purchase, agreement for the sale or other agreement to which the Company or any Restricted Subsidiary is disposition of a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or any of its assets in compliance with the assets terms of this Indenture that restricts distributions by that Restricted Subsidiary pending such sale or property of another Restricted Subsidiaryother disposition;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii9) provisions limiting the disposition or distribution of assets or property (including cash) in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), and customary provisions in joint venture agreements and other similar agreements applicable to the Equity Interests or Indebtedness of such joint venture, which limitation is applicable only to the assets that are the subject of such agreements;
(xiv10) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted SubsidiaryPermitted Liens;
(xv11) customary Secured Indebtedness otherwise permitted to be incurred by this Indenture that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(12) Purchase Money Indebtedness or Capital Lease Obligations that imposes restrictions of the type described in clause (3) of Section 4.08(a) on the property so acquired;
(13) provisions restricting assignment in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(14) restrictions in Investments in Persons that are Restricted Subsidiaries;
(15) any agreement entered into by the Company encumbrance or restriction pursuant to Hedging Obligations;
(16) Indebtedness or other agreements including, without limitation, agreements described in clause (9) above, of any Restricted Subsidiary in the ordinary course of business;that is not a Guarantor that impose restrictions solely on such Restricted Subsidiary and its Subsidiaries; or
(xvi17) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions any restriction on cash or other deposits or net worth imposed by (i) customers, lenders licensors or suppliers lessors or (ii) other third parties required by insurance, surety or bonding companies, in each case under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; orbusiness.
(xviii18) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii17) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the Company’s good faith judgment of the Companyjudgment, no not materially more restrictive in any material respect as a whole with respect to such encumbrance encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.;
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, to create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party toSubsidiary:
(i1) (A) to pay dividends (in cash or otherwise) or make any other distributions to any Credit Party on in respect of its Capital Stock owned by the Issuer or with respect any other Subsidiary Guarantor or pay any Debt or other obligation owed to the Issuer or any other Subsidiary Guarantor (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and any subordination of any obligation to any other interest or participation in, or measured by, its profits or owned by obligation shall not be deemed a restriction on the Company or any Restricted Subsidiary or (B) ability to pay any Indebtedness owed to any Credit PartyDebt or other obligation);
(ii2) to make loans or advances to the Issuer or any Credit Partyother Subsidiary Guarantor (it being understood that the subordination of loans and advances to the Issuer or any of its Restricted Subsidiaries to other Debt Incurred by the Issuer or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(iii3) sell, lease or otherwise to transfer any of its properties property or assets to the Company Issuer or any Restricted Subsidiaryother Subsidiary Guarantor.
(b) The restrictions in Notwithstanding Section 9.08(a) shall not apply 4.8(a), the Issuer may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions existing under or by reason ofrestriction:
(i1) applicable Requirements of Lawpursuant to any agreement in effect on the Issue Date (including the Senior Secured Credit Agreement);
(ii2) pursuant to this Agreement Indenture, the Notes and the other Credit DocumentsSubsidiary Guarantees;
(iii3) contractual encumbrances pursuant to an agreement relating to any Debt or Lien Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company Issue Date or any Restricted Subsidiary in existence at carrying on any of the time businesses of any such acquisition or at Restricted Subsidiary) prior to the time it merges with or into the Company or any date on which such Person became a Restricted Subsidiary or assumed and outstanding on such date and not Incurred in connection with the acquisition of assets from such Person (butwith, in any such caseor anticipation of, not created in contemplation thereof)becoming a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiariesacquired; provided, that the Incurrence of such Debt was permitted under Section 4.9 or the property or assets Incurrence of the Person so acquired and its Subsidiaries or the property or assets so acquiredsuch Lien was permitted under Section 4.12, as applicable;
(vi4) pursuant to an agreement effecting a refinancing of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such refinancing agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being refinanced, in each case as determined in good faith by the Issuer;
(5) in the case of a restriction described in clause (3) of Section 4.7(a), contained in any agreement (including a Finance Lease Obligation) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) in the case of a restriction described in clause (3) of Section 4.7(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases, subleases, licenses and other contracts for to the sale extent such provisions restrict the transfer or subletting of assetsany such lease or sublease or the assignment of rights under any such lease, including customary restrictions sublease, license or other contract;
(7) with respect to a Subsidiary of the Company Restricted Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary; provided that such restriction terminates if such transaction is closed or abandoned;
(vii8) in bona fide contracts for the sale of any property or assets;
(9) Indebtedness and Liens any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be incurred Incurred under this Indenture if the Issuer determines that any such encumbrance or restriction either (i) will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to Section 9.01 and Section 9.04.agreements in effect on the Issue Date or those contained in the Indenture or the Senior Secured Credit Agreement, in each case as determined in good faith by the Board of Directors or an officer of the Issuer;
(viii10) restrictions applicable to Foreign Subsidiaries;
(11) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) customary provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Permitted Investment), which limitation is applicable only to the joint venture or the assets that are the subject of such agreements, as applicable;
(xiv12) customary provisions restricting subletting if such encumbrance or assignment restriction is the result of any lease governing any leasehold interest of the Company applicable laws or any Restricted Subsidiaryregulations;
(xv13) customary provisions restricting assignment of restrictions and encumbrances created in connection with any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of businessReceivables Facility;
(xvi14) restrictions arising arise in connection with Liens on cash or other deposits permitted pursuant to under Section 9.01; and
(xvii) 4.12 or are restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liensbusiness; or
(xviii15) any encumbrances or restrictions if such restriction is the result of the type referred to in clauses Debt of a Restricted Subsidiary that is not a Subsidiary Guarantor which is permitted by Section 4.9 (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that as long as such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect restriction applies solely to such encumbrance Restricted Subsidiary and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingits Subsidiaries).
Appears in 1 contract
Sources: Indenture (Acushnet Holdings Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any kind of consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(1) existing on the Issue Date in the Credit Agreement, the Indenture, or any other agreements in effect on the Issue Date, and any extensions, refinancings, renewals, or replacements of any of the foregoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals, or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed, or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any other interest person or participation in, the property or measured by, its profits or owned assets of such person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions (Bi) pay any Indebtedness owed are not applicable to any Credit Partyperson or the property or assets of any person other than such person or the property or assets of such person so acquired and (ii) were not put in place in anticipation of such acquisition, and any extensions, refinancings, renewals, or replacements of any of the foregoing; PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals, or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed, or replaced;
(4) in the case of clause (4) of the first paragraph of this covenant;
(i) that restrict in a customary manner the subletting, assignment, or transfer of any property or asset that is a lease, license, conveyance, or contract or similar property or asset;
(ii) make loans existing by virtue of any transfer of, agreement to transfer, option or advances to right with respect to, or Lien on, any Credit Partyproperty or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture; or
(iii) sellnot relating to any Indebtedness, lease and, in each of cases (i), (ii), or transfer any (iii), arising or agreed to in the ordinary course of its properties business and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary.; or
(b5) The restrictions in Section 9.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions . Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which preceding paragraph shall prevent the Company or any Restricted Subsidiary is a party entered into in from (1) creating, incurring, assuming, or suffering to exist any Liens otherwise permitted by Section 4.14 or (2) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Sources: Indenture (Avado Brands Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or pay any Indebtedness or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company , except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw;
(iiB) the Notes or this Agreement and the other Credit DocumentsIndenture;
(iiiC) contractual encumbrances existing on non-assignment provisions of any contract or any lease of any Restricted Subsidiary of the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired Company entered into in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredbusiness;
(vD) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viE) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryNew Credit Facility;
(viiF) Indebtedness agreements existing on the Issue Date to the extent and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture the manner such agreements and other similar agreements or arrangements relating solely to such joint ventureare in effect on the Issue Date;
(ixG) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect restrictions on the transfer of assets subject to intellectual property and other agreements, in each case, entered into in any Lien permitted under this Indenture imposed by the ordinary course holder of businesssuch Lien;
(xH) restrictions imposed by any agreement to sell assets or conditions contained in Capital Stock permitted under this Indenture to any trading, netting, operating, construction, service, supply, purchase, sale Person pending the closing of such sale;
(I) any agreement or instrument governing Capital Stock of any Person that is acquired;
(J) any Purchase Money Note or other agreement to which the Company Indebtedness or any Restricted Subsidiary is other contractual requirements of a party entered into Securitization Entity in the ordinary course of businessconnection with a Qualified Securitization Transaction; provided that such agreement prohibits restrictions apply only to such Securitization Entity;
(K) other Indebtedness outstanding on the encumbrance Issue Date or permitted to be issued or incurred under this Indenture; provided that any such restrictions are ordinary and customary with respect to the type of solely Indebtedness being incurred or Preferred Stock being issued (under the property or assets relevant circumstances) if the Board of Directors of the Company or such Restricted Subsidiary determines that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Partyadversely affect the Company's ability to make principal or interest payments under on the Obligations when dueNotes;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xviiL) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liensbusiness; orand
(xviiiM) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (iA) through (xviiL) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors (evidenced by a Board Resolution) whose judgment shall be conclusively binding, no not materially more restrictive in any material respect with respect to such encumbrance dividend and other payment restrictions taken as a whole than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Dresser Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary
(a) on its Capital Stock or or
(b) with respect to any other interest or participation in, or measured by, its profits profits; or
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;Subsidiary; or
(ii3) make loans or advances or capital contributions to the Company or any Credit Partyof the Restricted Subsidiaries; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any of the Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Issue Date (including pursuant to the Senior Credit Facility) to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date;
(iv2) purchase money obligations for property acquired in this Indenture, the ordinary course of business Notes and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredGuarantees;
(v3) applicable law, rules, regulations or orders;
(4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
(vi5) contracts for customary non-assignment provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness and consistent with past practices;
(6) Refinancing Indebtedness; PROVIDED that such restrictions are no more restrictive than those contained in the agreements governing the Indebtedness being extended, including refinanced, renewed, replaced, defeased or refunded;
(7) customary restrictions in security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi9) any encumbrance customary restrictions in Purchase Money Indebtedness, Capitalized Lease Obligations or restriction with respect to security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to the extent such restrictions restrict the transfer of the property subject to such Purchase Money Indebtedness, Capitalized Lease Obligations, security agreements or mortgages; or
(10) any agreement or instrument governing Capital Stock of any Person that is acquired by reason of an agreement that such Subsidiary is a party to the Company or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided PROVIDED that no such agreement was not entered into restriction is created in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property contemplation of the Company or any other Restricted Subsidiary other than the assets and property acquisition of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingCapital Stock.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company; in Section 9.08(a) shall not apply to each case except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw;
(iib) the Notes or this Agreement and the other Credit DocumentsIndenture;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of manner such agreements are in effect on the Capital Stock or assets of such SubsidiaryIssue Date;
(viif) the Credit Agreement or an agreement governing other Pari Passu Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contractsunder this Indenture; provided that, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and any agreement governing such other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreementPari Passu Indebtedness, the payment rights arising thereunder or the proceeds thereof and does not extend provisions relating to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend are no less favorable to the Company in any assets or property material respect as determined by the Board of Directors of the Company or any other Restricted Subsidiary other in its reasonable and good faith judgment than the assets and property of such Subsidiaryprovisions contained in the Credit Agreement as in effect on the Issue Date;
(xiig) other Indebtedness, Disqualified Stock or Preferred Stock restrictions on the transfer of assets subject to any Lien permitted to be incurred subsequent to under this Indenture imposed by the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment holder of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when dueLien;
(xiiih) provisions limiting the disposition or distribution of restrictions imposed by any agreement to sell assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only Capital Stock permitted under this Indenture to any Person pending the assets that are the subject closing of such agreementssale;
(xivi) customary provisions restricting subletting or assignment restrictions imposed by agreements governing Indebtedness of any lease governing any leasehold interest a Foreign Restricted Subsidiary incurred pursuant to clauses (14) and (19) of the Company or any Restricted Subsidiarydefinition of “Permitted Indebtedness;”
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xviij) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business business;
(k) any Purchase Money Note or arising other Indebtedness or other contractual requirements of a Securitization Entity in connection with any Permitted Liensa Qualified Securitization Transaction; orprovided that such restrictions apply only to such Securitization Entity;
(xviiil) any encumbrances customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or restrictions similar entity or the equity interests therein) entered into in the ordinary course of business; and
(m) an agreement governing Indebtedness incurred to Refinance the type Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (i), (iib) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (id) through (xviil) of this Section 9.08(b)above; provided provided, however, that the provisions relating to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements encumbrance or refinancings are, restriction contained in any such agreements are no less favorable to the good faith judgment of the Company, no more restrictive Company in any material respect with respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b) and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing(d) through (l) above.
Appears in 1 contract
Sources: Indenture (Manitowoc Co Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary., except for such encumbrances or restrictions existing:
(a) under applicable law, rule, regulation, order, license or permit;
(b) The restrictions in Section 9.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Lawthe Indenture and the Collateral Agreements;
(iic) this Agreement and by reason of customary non-assignment provisions of any lease of any Restricted Subsidiary to the other Credit Documentsextent such provisions restrict the transfer of the lease or the property leased thereunder;
(iiid) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) under any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for under the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryCredit Agreement;
(viif) Indebtedness and Liens otherwise by reason of restrictions on the transfer of assets subject to any Permitted Lien;
(g) under customary agreements to sell assets or Capital Stock permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to sold under the Indenture pending the closing of such joint venturesale;
(ixh) customary provisions contained in contractsunder Purchase Money Indebtedness or Capitalized Lease Obligations permitted under the Indenture; provided, leases, sub-leases, licenses, sub-licenses that such encumbrances and restrictions relate only to the assets financed with such Indebtedness;
(i) by reason of restrictions on cash or similar agreements, including other deposits under bona fide arrangements with respect to intellectual property and other agreements, in each case, customers entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiaryconsistent with past practice;
(xij) on any encumbrance or restriction with respect to a Foreign Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason under Indebtedness of an agreement that such Subsidiary is a party permitted under the Indenture; or
(k) under Refinancing Indebtedness incurred to Refinance the Indebtedness referred to in clause (b), (d) or entered into before (e); provided, that the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any provisions relating to such encumbrance or restriction does not extend contained in any such Indebtedness are no more adverse to any assets the Holders and no less favorable or property of more onerous to the Company or any other and its Restricted Subsidiary other Subsidiaries than the assets and property of provisions relating to such Subsidiary;
(xii) other Indebtedness, Disqualified Stock encumbrance or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, restriction contained in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingIndebtedness being Refinanced.
Appears in 1 contract
Sources: Indenture (Boston Gear LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to ; except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw, rule, regulation or order;
(iiB) this Agreement and the other Credit DocumentsIndenture;
(iiiC) contractual encumbrances existing on the Second Restatement Effective DateCredit Agreement and/or the documentation for the Credit Agreement;
(ivD) purchase money obligations for property acquired in the ordinary course customary non-assignment provisions of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredany contract, agreement, license, permit or lease;
(vE) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viF) contracts for agreements existing on the sale of assets, including customary Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(G) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to any Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary pursuant to agreements as in effect on the Issue Date;
(H) any instrument governing Indebtedness of a Foreign Subsidiary or a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such a Foreign Subsidiary;
(viiI) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 4.13 and associated agreements that limit the right of the debtor to dispose of the assets subject to such Liens;
(J) secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 9.04.4.13 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(viiiK) any agreement governing the sale or disposition of any Restricted Subsidiary or all or substantially all of the assets of any Restricted Subsidiary which restricts dividends and distributions of such Restricted Subsidiary pending such sale or disposition;
(L) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(xM) consisting of restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(N) customary restrictions on dispositions of real property interests found in reciprocal easement agreements;
(O) consisting of customary restrictions pursuant to any Qualified Receivables Transaction;
(P) provisions in instruments governing other Indebtedness of Restricted Subsidiaries permitted to be Incurred after the Issue Date; provided that (i) such provisions are customary for instruments of such type (as determined in good faith by a Responsible Officer of the Company) and (ii) a Responsible Officer of the Company determines in good faith that such restrictions will not materially adversely impact the ability of the Company to make required principal and interest payments on the Notes;
(Q) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (B), (C), (E), (F) and (G) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such dividend restrictions and other encumbrances than those contained prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(R) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale purchase or other agreement to which the Company or any of its Restricted Subsidiary Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary;
. For purposes of determining compliance with this covenant, (xii) the priority of any encumbrance Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction with respect on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any to other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into Indebtedness Incurred by the Company or any such Restricted Subsidiary in shall not be deemed a restriction on the ordinary course of business;
(xvi) restrictions arising in connection with cash ability to make loans or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingadvances.
Appears in 1 contract
Sources: Indenture (Visteon Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall WCI will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock of such Restricted Subsidiary owned by WCI or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or Subsidiary;
(Bii) pay any Indebtedness owed to WCI or any Credit Partyother Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iiiii) make loans or advances to WCI or any Credit Partyother Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary; or
(iiiiv) sell, lease or transfer any of its properties property or assets to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.. The foregoing provisions shall not prohibit any encumbrances or restrictions:
(bi) The existing on the Closing Date in this Agreement or any other agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on with respect to any Person or the property so acquired;
(v) any agreement or other instrument assets of a such Person acquired by or merged or consolidated with or into the Company WCI or any Restricted Subsidiary in existence Subsidiary, at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, and not created incurred in contemplation thereof), which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the any Person so acquired and its Subsidiaries other than such Person or the property or assets of such Person so acquired;
(viiv) contracts for in the sale case of assetsclause (iv) of the first paragraph of this Section 6.03, including (A) that restrict in a customary restrictions manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of WCI or any Restricted Subsidiary not otherwise prohibited by this Agreement or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of WCI or any Restricted Subsidiary in any manner material to WCI or any Restricted Subsidiary; or
(v) with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions . Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company this Section 6.03 shall prevent WCI or any Restricted Subsidiary is a party entered into in from (i) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company WCI or any other of its Restricted Subsidiary other than the assets and property Subsidiaries that secure Indebtedness of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company WCI or any of its Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers Subsidiaries or (ii) other third parties creating, incurring, assuming or suffering to exist any Liens otherwise permitted under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing6.07.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Issuer to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Issuer or any Credit Partyof its Restricted Subsidiaries or to pay any Indebtedness or other obligation owed to the Issuer or any other Restricted Subsidiary of the Issuer; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Issuer, in Section 9.08(a) shall not apply to each case except for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw or any applicable rule, regulation or order;
(iib) the Notes, the Guarantees, this Agreement Indenture and the other Credit Security Documents;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateIssuer;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person Person, or with respect to any property or assets or Capital Stock or Indebtedness, acquired by or merged or consolidated with or into the Company Issuer or any Restricted Subsidiary, or any Person that becomes a Restricted Subsidiary (including by designation), in existence at the time of such acquisition or designation or at the time it merges with or into the Company Issuer or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such each case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Subsidiaries, so acquired;
(vie) contracts for contractual encumbrances or restrictions in effect on the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryIssue Date;
(viif) Indebtedness and Liens otherwise the First Lien Credit Agreement or an agreement governing Additional Parity Debt permitted to be incurred pursuant under this Indenture; provided that, with respect to Section 9.01 any agreement governing such other Additional Parity Debt, the provisions relating to such encumbrance or restriction are no less favorable to the Issuer in any material respect as determined by the Board of Directors of the Issuer in its reasonable and Section 9.04.good faith judgment than the provisions contained in the First Lien Credit Agreement as in effect on the Issue Date;
(viiig) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(h) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) restrictions imposed by agreements governing obligations of Foreign Restricted Subsidiaries which are permitted under this Indenture;
(j) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(k) any Purchase Money Note or other Indebtedness or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity;
(l) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint ventureventure or similar entity or the equity interests therein);
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(xm) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Issuer or any of the Restricted Subsidiary Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xviin) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (ib) through (xviim) of this Section 9.08(b)above; provided provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect provisions relating to such encumbrance and other restrictions taken as a whole than those prior to or restriction contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingrefinancing are no less favorable to the Issuer in any material respect as determined by the Board of Directors of the Issuer in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b) through (m) above.
Appears in 1 contract
Sources: Indenture (Manitowoc Co Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company
(a) on its Capital Stock or Stock, or
(b) with respect to any other interest or participation in, or measured by, its profits profits, or
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;of the Company,
(ii3) make loans or advances or capital contributions to the Company or any Credit Party; of its Restricted Subsidiaries or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date;,
(iv2) purchase money obligations for property the Indenture, the Notes and the Guarantees,
(3) applicable law,
(4) contracts to which any Person who is acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection accordance with the acquisition terms of assets from such Person (butthis Indenture is a party, in including any such case, not created in contemplation thereof)instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person (including any Subsidiary of the Person), so acquired acquired,
(5) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and its Subsidiaries consistent with past practices,
(6) Refinancing Indebtedness; provided that such restrictions are no more restrictive than those contained in the agreements governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded,
(7) customary restrictions in Capitalized Lease Obligations, security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets so acquired;subject to such Capitalized Lease Obligations, security agreements and mortgages,
(vi) contracts for the sale of assets, including 8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;,
(vii9) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, contracts entered into in the ordinary course of business
(x) restrictions , not relating to any Indebtedness, and that do not, individually or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course aggregate, detract from the value of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any Restricted Subsidiary that are the subject in any manner material to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;,
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii10) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts (not evidencing or relating to Indebtedness) entered into the ordinary course of business,
(11) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business business,
(12) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or arising in connection with any Permitted Liens; Restricted Subsidiary, or
(xviii13) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to a Receivables Subsidiary, an agreement relating to Indebtedness of such encumbrance and other restrictions taken as Receivables Subsidiary which is permitted under Section 4.10 or pursuant to an agreement relating to a whole than those prior to Permitted Receivables Financing by such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingReceivables Subsidiary.
Appears in 1 contract
Sources: Indenture (Ifco Systems Nv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of the Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (Aa) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock (it being understood that the priority of any preferred stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, or measured by, its profits or owned by liquidating distributions being paid on common stock shall not be deemed a restriction on the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed ability to any Credit Partymake distributions on Capital Stock);
(iib) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary; or
(iiic) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to ; except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawlaw;
(ii2) this Agreement and the other Credit DocumentsIndenture;
(iii3) contractual encumbrances existing on the Second Restatement Effective DateCredit Agreement and/or the documentation for the Credit Agreement;
(iv4) purchase money obligations the Senior Notes and Senior Subordinated Notes and/or the documentation for property acquired the Senior Notes and Senior Subordinated Notes and the Senior Secured Notes and/or documentation for the Senior Secured Notes, in the ordinary course of business and Financing Lease Obligations that impose restrictions case of the nature discussed in clause (iii) Senior Secured Notes pending redemption of Section 9.08(a) hereof on the property so acquiredSenior Secured Notes within 45 days after the Issue Date using the net proceeds of this offering;
(v5) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(6) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi7) contracts for agreements existing on the sale of assets, including customary Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(8) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to a any Restricted Subsidiary of the Company than those in effect with respect to such Restricted Subsidiary pursuant to an agreement that has been entered into for agreements as in effect on the sale or disposition Issue Date;
(9) any instrument governing Indebtedness of all or substantially all of the Capital Stock or assets of such a Foreign Restricted Subsidiary;
(vii10) customary restrictions on the transfer of any property or assets arising under a security agreement governing a Lien permitted under this Indenture;
(11) secured Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 4.03 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely 4.15 that limit the right of the debtor to dispose of the assets securing such joint ventureIndebtedness;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi12) any encumbrance agreement governing Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary incurred pursuant to or by reason of an agreement referred to in clause (2), (4), (6), (7) or (9) above; provided, however, that such Subsidiary is a party the provisions relating to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does contained in any such Refinancing Indebtedness are not extend to any assets or property of the Company or any other Restricted Subsidiary other materially more restrictive than the assets and property of provisions relating to such Subsidiaryencumbrance or restriction contained in agreements referred to in such clause (2), (4), (6), (7) or (9);
(xii13) other Indebtednessany agreement governing the sale or disposition of any Restricted Subsidiary which restricts dividends and distributions pending such sale or disposition;
(14) any agreement, Disqualified Stock instrument or Preferred Stock Lien placing encumbrances or restrictions applicable only to a Finance Subsidiary or an Accounts Receivable Entity; or
(15) any agreement governing Indebtedness permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b)4.03; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect provisions relating to such encumbrance and other restrictions or restriction contained in such Indebtedness, taken as a whole whole, are not materially more restrictive than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement the provisions contained in the Credit Agreement or refinancingin this Indenture as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Tenneco Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary or to pay any Indebtedness or other Obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions Subsidiary of the Company; except in Section 9.08(a) shall not apply to each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw, rule or regulation;
(iib) this Agreement and the other Credit DocumentsIndenture;
(iiic) contractual encumbrances existing on customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Second Restatement Effective DateCompany;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vd) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vie) contracts for agreements existing on the sale of assets, including customary restrictions with respect Issue Date to a Subsidiary of the Company pursuant to an agreement that has been entered into for extent and in the sale or disposition of all or substantially all of the Capital Stock or assets of manner such Subsidiaryagreements are in effect on this Issue Date;
(viif) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.the Security Documents;
(viiig) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(h) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) customary provisions in joint venture agreements and other similar agreements or arrangements (in each case relating solely to such the respective joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses venture or similar agreements, including with respect to intellectual property and other agreements, in each case, entity or the equity interests therein) entered into in the ordinary course of businessbusiness and not otherwise in violation of any other provisions of this Indenture;
(xj) restrictions an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or conditions incurred pursuant to an agreement referred to in clauses (b), (d), (e) and (g) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement such Indebtedness are no less favorable to which the Company or in any Restricted Subsidiary is a party entered into in material respect as determined by the ordinary course Board of business; provided that such agreement prohibits the encumbrance of solely the property or assets Directors of the Company or such Restricted Subsidiary that are in their reasonable and good faith judgment than the subject provisions relating to such agreementencumbrance or restriction contained in agreements referred to in such clauses (b), the payment rights arising thereunder or the proceeds thereof (d), (e) and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary(g);
(xik) in the case of clause (3) of this covenant, any encumbrance or restriction with respect that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to lease, license or by reason similar contract, or the assignment or transfer of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance lease, license or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiarycontract;
(xiil) other Indebtedness, Disqualified Stock any agreement or Preferred Stock instrument governing Indebtedness permitted to be incurred subsequent under this Indenture, provided that (x) the terms and conditions of any such restrictions and encumbrances, taken as a whole, are not more restrictive than those contained in this Indenture or (y) in the case of an agreement or instrument governing Indebtedness described in clause (4) of the definition of "Permitted Indebtedness," the terms and conditions do not materially restrict the benefits to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments Company and its Restricted Subsidiaries that are Guarantors described under the Obligations when due;
(xiii) provisions limiting the disposition or distribution definition of assets or property "Local Services Agreement" and not otherwise in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment violation of any lease governing any leasehold interest other provisions of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01this Indenture; and
(xviim) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingbusiness.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or pay any Indebtedness or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary of the Company; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw, rule, regulation or order;
(iiB) the Notes (including the Exchange Notes) or this Agreement and the other Credit DocumentsIndenture;
(iiiC) contractual encumbrances existing on non-assignment provisions of any contract or any lease of any Restricted Subsidiary of the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired Company entered into in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredbusiness;
(vD) any agreement instrument governing Acquired Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)Subsidiaries, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(viE) contracts for agreements existing on the sale of assetsIssue Date to the extent and in the manner such agreements are in effect on the Issue Date, including customary the New Credit Facility and the Bridge Facility;
(F) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(G) with respect to clause (3) above only, restrictions imposed by any agreement to sell assets permitted under this Indenture to any Person pending the closing of such sale;
(H) any agreement or instrument governing Capital Stock of any Person that is acquired if such agreement or instrument was entered into prior to the date on which such Person was acquired and not in contemplation of such Person being acquired;
(I) any Securitization Note or other Indebtedness or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity;
(J) other Indebtedness outstanding on the Issue Date or permitted to be issued or incurred under this Indenture; provided that any such encumbrances and restrictions with respect to a Subsidiary the Restricted Subsidiaries of the Company pursuant contained in any agreement governing such Indebtedness are not materially more restrictive with respect to an such Restricted Subsidiaries (when taken as a whole) than the encumbrances and restrictions contained in agreements in effect on the Issue Date, or, in the case of any Credit Facility, those contained in the New Credit Facility and the Bridge Facility, and the Board of Directors of the Company determines in good faith that any such encumbrance or restriction included in the agreement that has been governing such Indebtedness will not materially adversely affect the Company’s ability to make timely payment of interest, premium (if any) or principal on the Notes when due;
(K) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(L) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph;
(M) any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
a Restricted Subsidiary of the Company (viiother than Finance Corp. and ▇▇▇▇ Rental) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in that restricts distributions by that Restricted Subsidiary pending the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of businessdisposition; provided that at the time such agreement prohibits is entered into, the encumbrance Board of solely the property or assets Directors of the Company or such Restricted Subsidiary determines in good faith that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of included in such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence agreement will not materially impair any Credit Party's affect the Company’s ability to make payments under timely payment of interest, premium (if any) or principal on the Obligations Notes when due;
(xiiiN) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment)the approval of the Board of Directors of the Company, which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviiiO) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (iA) through (xviiN) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyBoard of Directors of the Company (evidenced by a Board Resolution), no whose judgment shall be conclusively binding, not materially more restrictive in any material respect restrictive, taken as a whole, with respect to such encumbrance dividend and other payment restrictions taken as a whole than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Neff Finance Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary;
(Bii) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iiiii) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary; or
(iiiiv) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.. The foregoing provisions shall not prohibit any encumbrances or restrictions:
(bi) The existing on the Closing Date in this Indenture or any other agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances existing on or restrictions are not applicable to any Person or the Second Restatement Effective Dateproperty or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) purchase money obligations for in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property acquired or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business business, not relating to any Indebtedness, and Financing Lease Obligations that impose restrictions do not, individually or in the aggregate, detract from the value of the nature discussed in clause (iii) property or assets of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into any manner material to the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;Subsidiary; or
(viv) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions . Nothing contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which this Section 4.05 shall prevent the Company or any Restricted Subsidiary is a party entered into in from (i) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers Subsidiaries or (ii) other third parties creating, incurring, assuming or suffering to exist any Liens otherwise permitted under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing4.09.
Appears in 1 contract
Sources: Senior Deferred Interest Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in paragraph (b) below, the Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock to the Borrower or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to the Borrower or any Credit Partyother Restricted Subsidiary;
(ii) make loans or advances to the Borrower or any Credit Partyother Restricted Subsidiary; or
(iii) sell, lease or transfer any of its properties property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(aParagraph (a) shall above will not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable Requirements of Lawlaw;
(ii) this Agreement and the other Credit DocumentsAgreement;
(iii) contractual any encumbrances existing or restrictions in effect as of the Effective Date and any encumbrances or restrictions contained in extensions, refinancings, renewals or replacements of any Indebtedness outstanding on the Second Restatement Effective Date that are not materially more restrictive than those in existence on the Effective Date;
(iv) purchase money obligations for property acquired customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in the ordinary course any lease governing a leasehold interest of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof any Restricted Subsidiary, or any customary restriction on the property so acquiredability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Agreement;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed governing Acquired Indebtedness not Incurred in connection with with, or in anticipation or contemplation of, the acquisition of assets from such Person (butrelevant acquisition, in any such case, not created in contemplation thereof)merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company Borrower imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such SubsidiaryRestricted Subsidiary being sold;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) arising in connection with the Incurrence of Indebtedness of a Guarantor after the Effective Date; provided, that such encumbrances or restrictions (1) relate solely to such Guarantor, are required in order to effect such financing and are not more restrictive on the ability of such Guarantor to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted and (2) the proposed encumbrances or restrictions, taken together with other encumbrances or restrictions on the payments, distributions, loans, advances or transfers referred to above in effect with respect to Restricted Subsidiaries, do not prevent the Restricted Subsidiaries of the Borrower from making distributions to the Borrower sufficient to pay amounts payable in respect of its Indebtedness due during the 12 month period immediately following the Incurrence of such Indebtedness;
(ix) arising in connection with the Incurrence of Indebtedness by a Permitted Joint Venture after the Effective Date, provided, that such encumbrances or restrictions are required in order to effect such financing and are not more restrictive on the ability of the applicable Permitted Joint Venture to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted; or
(x) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business consistent with past practice. Nothing contained in this Section 5.09 shall prevent the Borrower or arising in connection with any Permitted Liens; or
Restricted Subsidiary from (xviii1) creating, incurring, assuming or suffering to exist any encumbrances Liens otherwise permitted by Section 5.10 or restrictions (2) restricting the sale or other disposition of property or assets of the type referred to in clauses (i), (ii) and (iii) Borrower or any of its Restricted Subsidiaries that secure Indebtedness provided such restriction is otherwise permitted by Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing5.10.
Appears in 1 contract
Sources: Loan Agreement (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by (2) repay any Debt or any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party;Subsidiary,
(iib) make loans or advances or Capital Contributions to the Company or any Credit Party; Restricted Subsidiary, or
(iiic) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired Issue Date to the extent and in the ordinary course of business manner such encumbrances and Financing Lease Obligations that impose restrictions of the nature discussed are in clause (iii) of Section 9.08(a) hereof effect on the property so acquired;
Issue Date, (v2) encumbrances or restrictions in the Credit Facilities, (3) this Indenture, the Notes and any Guarantees, (4) applicable law, (5) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary governing Acquired Debt as in existence effect at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person (including any Subsidiary of the Person), so acquired acquired, (6) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and its Subsidiaries consistent with past practices, (7) Refinancing Debt; PROVIDED that such restrictions are not on the whole materially more restrictive than those contained in the agreements governing the Debt being extended, refinanced, renewed, replaced, defeased or refunded, (8) restrictions in security agreements or mortgages securing Debt of the Company or a Restricted Subsidiary only to the extent such restrictions restrict the transfer of the property or assets so acquired;
subject to such security agreements and mortgages, (vi9) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
Restricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the Capital Stock or assets to be sold or disposed of, (vii10) Indebtedness and Liens purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (c)(8) of this Section 10.12 on the property so acquired, (11) any agreement for the sale of assets (including any Asset Sale) that restricts transfers of such assets pending their sale, (12) secured Debt otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary the provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary covenant described above under Section 10.08 that are limits the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property right of the Company or such Restricted Subsidiary or debtor to dispose of the assets or property of another Restricted Subsidiary;
securing such Debt, (xi13) any encumbrance or restriction with respect contained in Purchase Money Debt to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement the extent that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property (A) only restricts the transfer of the Company or any other Restricted Subsidiary other than the assets Property financed with such Purchase Money Debt and property of such Subsidiary;
(xiiB) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent solely relates to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided thatProperty financed with such Purchase Money Debt, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
or (xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii14) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties customers under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingbusiness.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (A) pay dividends or make any other distributions to permitted by applicable law on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary, (Bii) pay any Indebtedness owed to the Company or any Credit Party;
other Restricted Subsidiary, (iiiii) make loans or advances to the Company or any Credit Party; or
other Restricted Subsidiary or (iiiiv) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.. The foregoing provisions shall not restrict any encumbrances or restrictions:
(bi) The existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any amendments, extensions, refinancings, renewals or replacements of such agreements; PROVIDED that the amendments, encumbrances and restrictions in Section 9.08(a) shall not apply any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of:
(i) of applicable Requirements of Law;
(ii) this Agreement and the other Credit Documentslaw;
(iii) contractual existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances existing on or restrictions are not applicable to any Person or the Second Restatement Effective Dateproperty or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) purchase money obligations for in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property acquired or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business business, not relating to any Indebtedness, and Financing Lease Obligations that impose restrictions do not, individually or in the aggregate, detract from the value of the nature discussed in clause (iii) property or assets of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into any manner material to the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquiredSubsidiary;
(viv) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;; or
(viivi) contained in the terms of any Indebtedness and Liens otherwise permitted to be incurred or any agreement pursuant to Section 9.01 and Section 9.04.
which such Indebtedness was issued if (viiiA) customary provisions the encumbrance or restriction applies only in joint venture agreements and other similar agreements the event of a payment default or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including a default with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any trading, netting, operating, construction, service, supply, purchase, sale such encumbrance or other agreement restriction will not materially affect the Company's ability to which make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary is a party entered into from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the ordinary course sale or other disposition of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any of its Restricted Subsidiary Subsidiaries that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property secure Indebtedness of the Company or any other of its Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingSubsidiaries.
Appears in 1 contract
Sources: Indenture (Dobson Wireline Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of the Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or (B) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary;
(ii2) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions ; except, in Section 9.08(a) shall not apply to each case, for encumbrances or restrictions existing under or by reason of:
(ia) applicable Requirements of Lawlaw, rule, regulation or order;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vb) any agreement or other instrument in existence on October 2, 2009;
(c) the Notes, the Elan Note Guarantee, the Subsidiary Note Guarantees and this Indenture;
(d) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a Person acquired by or merged or consolidated with or into the Company or leasehold interest of any Restricted Subsidiary in existence at and customary restrictions imposed on the time transfer of such acquisition copyrighted, patented or at the time it merges with or into the Company or trademarked materials;
(e) any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vif) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided that such restrictions apply solely to the Capital Stock or assets of such SubsidiaryRestricted Subsidiary being sold;
(viig) secured Indebtedness and Liens otherwise permitted to be incurred Incurred pursuant to Section 9.01 3.8 and Section 9.04.3.13 that limit the right of the debtor with respect to the assets securing such Indebtedness;
(viiih) customary provisions in partnership agreements, limited liability company organizational governance documents (including, without limitation, memoranda and articles of association), joint venture venture, asset sale and stock sale agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions business that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiarysimilar Person;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xviii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties landlords under contracts entered into in the ordinary course of business business;
(j) Indebtedness or arising other encumbrances or restrictions of a Receivables Subsidiary in connection with any Permitted Liensa Qualified Receivables Transaction; orprovided that such restrictions apply only to such Receivables Subsidiary;
(xviiik) any other agreement governing Indebtedness entered into after October 2, 2009 that contains encumbrances and restrictions that are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on October 2, 2009 with respect to that Restricted Subsidiary pursuant to agreements in effect on October 2, 2009;
(l) other Indebtedness of Restricted Subsidiaries that are Subsidiary Note Guarantors in an aggregate principal amount at any one time outstanding not to exceed $175 million; and
(m) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, amendments and restatements, renewals, increases, supplements, refundingsmodifications, extensions, renewals, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (ia) through (xviil) of this Section 9.08(b)above; provided that such amendments, modifications, amendments and restatements, renewals, increases, supplements, refundingsmodifications, extensions, renewals, replacements or refinancings are, in the good faith judgment of the Company, no not materially more restrictive in any material respect restrictive, taken as a whole, with respect to such encumbrance encumbrances and other restrictions taken as a whole than those prior to such amendmentamendments, modificationamendments and restatements, restatementsupplements, renewalmodifications, increaseextensions, supplementrenewals, refunding, replacement replacements or refinancingrefinancings.
Appears in 1 contract
Sources: Indenture (Elan Corp PLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
to (i) (Ai)(a) pay dividends or make any other distributions to the Company or any Credit Party of its Restricted Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (Bb) pay any Indebtedness owed to the Company or any Credit Party;
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or any Credit Party; or
of its Restricted Subsidiaries, (iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
Subsidiaries, (biv) The restrictions grant any Liens in Section 9.08(afavor of the Holders of the Notes and the Trustee or (v) shall not apply to guarantee the Notes or any renewals or refinancings thereof, except for such encumbrances or restrictions existing under or by reason of:
of (iA) Existing Indebtedness, (B) the Bank Credit Agreement, (C) applicable Requirements of Law;
law, (ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(vD) any agreement instrument governing Indebtedness or other instrument Capital Stock of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary Subsidiaries as in existence effect at the time of such acquisition or at (except to the time it merges with or into the Company or any Restricted Subsidiary or assumed extent such Indebtedness was Incurred in connection with the acquisition of assets from such Person (but, in any such case, not created or in contemplation thereofof such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
, provided that in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred, (viE) customary non-assignment provisions in leases, licenses, sales agreements or other contracts for (but excluding contracts related to the sale extension of assetscredit) entered into in the ordinary course of business and consistent with past practices, including customary (F) restrictions with respect imposed pursuant to a Subsidiary of the Company pursuant to an binding agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock Equity Interests or assets of any Restricted Subsidiary, provided such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating restrictions apply solely to such joint venture;
the Equity Interests or assets being sold, (ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(xG) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which imposed by Permitted Liens on the Company or any Restricted Subsidiary is a party entered into in the ordinary course transfer of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of to such agreements;
Liens, and (xivH) customary provisions restricting subletting Permitted Refinancing Indebtedness Incurred to refinance Existing Indebtedness or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions Indebtedness of the type referred to described in clauses clause (i)D) above, (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, the restrictions contained in the good faith judgment of the Company, no more restrictive in any material respect with respect to agreements governing such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.Permitted Refinancing Indebtedness
Appears in 1 contract
Sources: Indenture (Louisiana Ship Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on or in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit PartyStock;
(ii2) make loans or advances or to pay any Credit PartyIndebtedness or other obligation owed to the Company or any other Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to ; except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable Requirements of Lawlaw, rule, regulation or order;
(iiB) this Agreement and the other Credit DocumentsIndenture;
(iiiC) contractual encumbrances existing on the Second Restatement Effective DateCredit Agreement and/or the documentation for the Credit Agreement;
(ivD) purchase money obligations for property acquired customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business and Financing Lease Obligations that impose restrictions business, including customary non-assignment provisions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredany contract or any lease governing a leasehold interest;
(vE) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property properties or assets of the Person so acquired;
(F) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(G) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to any Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary pursuant to agreements as in effect on the Issue Date;
(H) any instrument governing Indebtedness of a Foreign Subsidiary;
(I) a security agreement governing a Lien permitted under this Indenture containing customary restrictions on the transfer of any property or assets;
(J) secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.13 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(K) any agreement governing the sale or disposition of any Restricted Subsidiary which restricts dividends and distributions of such Restricted Subsidiary pending such sale or disposition;
(L) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or similar Person;
(M) purchase money obligations for property acquired and its Subsidiaries or Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.11(a)(3) on the property or assets so acquired;
(viN) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(xO) customary restrictions pursuant to any Qualified Receivables Transaction;
(P) existing pursuant to provisions in instruments governing other Indebtedness of Restricted Subsidiaries permitted to be Incurred after the Issue Date; provided that (i) such provisions are customary for instruments of such type (as determined in good faith by the Company’s Board of Directors) and (ii) the Company’s Board of Directors determines in good faith that such restrictions will not materially adversely impact the ability of the Company to make required principal and interest payments on the Notes;
(Q) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (B), (C), (E), (F) and (G) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such dividend restrictions and other encumbrances than those contained prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(R) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale purchase or other agreement to which the Company or any of its Restricted Subsidiary Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary;
. For purposes of determining compliance with this covenant, (xii) the priority of any encumbrance Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction with respect on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any to other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into Indebtedness Incurred by the Company or any such Restricted Subsidiary in shall not be deemed a restriction on the ordinary course of business;
(xvi) restrictions arising in connection with cash ability to make loans or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingadvances.
Appears in 1 contract
Sources: Indenture (Dana Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company
(a) on its Capital Stock or or
(b) with respect to any other interest or participation in, or measured by, its profits profits;
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Partyof the Company;
(ii3) make loans or advances or capital contributions to the Company or any Credit Partyof its Restricted Subsidiaries; or
(iii4) sell, lease or transfer any of its properties Properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries; except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Law;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances or restrictions existing on the Second Restatement Effective Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date;
(iv2) purchase money obligations for property acquired in this Indenture, the ordinary course of business Notes and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquiredGuarantees;
(v3) applicable law;
(4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties Property or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property Property or assets of the Person (including any Subsidiary of the Person), so acquired and its Subsidiaries or any contract to which the property or assets Person (including any Subsidiary of such Person) so acquiredacquired is a party so long as such contract was not entered into in contemplation of such acquisition;
(vi5) contracts for customary non-assignment provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness and consistent with past practices;
(6) Refinancing Indebtedness, including provided that such restrictions are no more restrictive than those contained in the agreements governing the Indebtedness being refunded, refinanced or extended;
(7) customary restrictions in Capitalized Lease Obligations, security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the Property subject to such Capitalized Lease Obligations, security agreements and mortgages;
(8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi9) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted SubsidiarySenior Credit Facilities; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;or
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv10) customary provisions restricting subletting or assignment dispositions of real property interests set forth in any lease governing any leasehold interest reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Transportation Technologies Industries Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party toSubsidiary:
(i1) (A) to pay dividends (in cash or otherwise) or make any other distributions to any Credit Party on in respect of its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or (B) pay any Indebtedness Debt or other obligation owed to the Company or any Credit Partyother Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii2) to make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii3) sell, lease or otherwise to transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The Notwithstanding the restrictions in Section 9.08(a) shall not apply 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions existing under or by reason ofrestriction:
(i1) applicable Requirements of Lawpursuant to any agreement in effect on the Issue Date (including the ABL Credit Facility and the related documentation and related Permitted Interest Rate, Currency or Commodity Price Agreements);
(ii2) pursuant to this Agreement Indenture, the Notes and the other Credit DocumentsSubsidiary Guarantees;
(iii3) contractual encumbrances pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company Issue Date or any Restricted Subsidiary in existence at carrying on any of the time businesses of any such acquisition or at Restricted Subsidiary) prior to the time it merges with or into the Company or any date on which such Person became a Restricted Subsidiary or assumed and outstanding on such date and not Incurred in connection with the acquisition of assets from such Person (butwith, in any such caseor anticipation of, not created in contemplation thereof)becoming a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or acquired; provided that the property or assets Incurrence of the Person so acquired and its Subsidiaries or the property or assets so acquiredsuch Debt was permitted under Section 4.9;
(vi4) contracts for pursuant to an agreement effecting any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of Debt Incurred pursuant to an agreement referred to in clauses (1), (3), (6) and (11) of this Section 4.8(b); provided, however, that the sale provisions contained in such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of assetsa restriction described in Section 4.8(a)(3), contained in any security agreement securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) customary restrictions in leases (including finance leases), subleases, licenses, sublicenses, security agreements or mortgages, including customary with respect to intellectual property and other agreements, or other purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property purchased or leased of the nature described in Section 4.8(a)(3);
(7) Liens permitted to be incurred under Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(8) with respect to a Subsidiary of the Company Restricted Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary; provided that such restriction terminates if such transaction is closed or abandoned;
(vii9) Indebtedness and Liens in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be incurred Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to Section 9.01 and Section 9.04.agreements in effect on the Issue Date or those contained in this Indenture or the ABL Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(viii11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries;
(12) if such encumbrance or restriction is the result of applicable laws or regulations;
(13) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x14) any agreement or other instrument of a Person acquired by or merged, amalgamated or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges, amalgamates or consolidates with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in each case, not created in contemplation thereof); provided that such encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;
(15) any encumbrance or restriction pursuant to a Permitted Interest Rate, Currency or Commodity Price Agreement;
(16) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business or arising in connection with any Lien permitted under Section 4.12;
(17) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreementagreement or dedicated to the performance thereunder by the Company or such Restricted Subsidiary, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;; or
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv18) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Unisys Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions distribution to the Company or any Credit Party Restricted Subsidiary on its Capital Stock (it being understood that the priority of any Preferred Equity Interests in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock) or with respect to any other interest or participation in, or measured by, its profits profits, or owned pay any Indebtedness owed to the Company or any Restricted Subsidiary;
(2) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed shall not be deemed a restriction on the ability to any Credit Party;
(ii) make loans or advances to any Credit Partyadvances); or
(iii3) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.08(a) shall hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness and existing agreements as in effect on the date of this Indenture (including (i) applicable Requirements without limitation, any Credit Facilities and (ii) any agreements governing Indebtedness incurred by the Partnership Parks Entities pursuant to clause (24) of LawSection 4.09(b));
(ii2) this Agreement and the other Credit Documentsapplicable law, rule, regulation or order;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v3) any instrument governing Acquired Debt and any other agreement or other instrument of a an acquired Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary of its Subsidiaries as in existence effect at the time of acquisition (except to the extent such acquisition Indebtedness or at the time it merges with other agreement or into the Company or any Restricted Subsidiary or assumed instrument was incurred in connection with the acquisition of assets from such Person (butwith, in any such case, not created or in contemplation thereofof, such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person Person, so acquired and or any of its Subsidiaries or the property or assets so acquiredSubsidiaries;
(vi4) contracts for Refinancing Indebtedness (as defined under Section 4.09 hereof); provided that the sale of assets, including customary restrictions with respect to a Subsidiary contained in the agreements governing such Refinancing Indebtedness are no more restrictive than those contained in the agreements governing the Indebtedness being Refinanced;
(5) agreements governing Indebtedness of the Company pursuant to an agreement ranking pari passu with the Notes; provided that has been entered into for except as set forth in clause (18) below such restrictions are no more restrictive taken as a whole than those imposed by this Indenture and the sale or disposition of all or substantially all of the Capital Stock or assets of such SubsidiaryNotes;
(vii6) agreements governing other Indebtedness and Liens otherwise permitted to be incurred pursuant under the provisions of Section 4.09 hereof; provided that the restrictions therein will not materially adversely impact the Company’s ability to Section 9.01 and Section 9.04.
make required principal or interest payments on the Notes (viii) customary provisions as determined by the Company in joint venture agreements and other similar agreements or arrangements relating solely to such joint venturegood faith);
(ix7) customary non-assignment provisions contained in contracts, leases, sub-leases, licenses, sub-leases and licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(x) restrictions or conditions contained in 8) any trading, netting, operating, construction, service, supply, purchase, agreement for the sale or other agreement to which the Company or any Restricted Subsidiary is disposition of a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or any of its assets in compliance with the assets terms of this Indenture that restricts distributions by that Restricted Subsidiary pending such sale or property of another Restricted Subsidiaryother disposition;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii9) provisions limiting the disposition or distribution of assets or property (including cash) in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), and customary provisions in joint venture agreements and other similar agreements applicable to the Equity Interests or Indebtedness of such joint venture, which limitation is applicable only to the assets that are the subject of such agreements;
(xiv10) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company Permitted Liens or any Restricted SubsidiaryLiens otherwise permitted under Section 4.12;
(xv11) customary provisions restricting assignment of any agreement entered into Secured Indebtedness otherwise permitted to be incurred by this Indenture that limits the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions right of the type referred debtor to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings dispose of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that assets securing such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.Indebtedness;
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 4.10(b), the Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to on any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or Equity Interests of the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or Subsidiary,
(B2) pay any Indebtedness Debt or other obligation owed to the Company or any Credit Party;other Restricted Subsidiary,
(ii3) make loans or advances to the Company or any Credit Party; other Restricted Subsidiary, or
(iii4) sell, lease or transfer any of its properties property or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in provisions of Section 9.08(a4.10(a) shall do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders than the encumbrances or restrictions existing under being extended, renewed, replaced or refinanced;
(2) existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by reason of:the Company or any Restricted Subsidiary, or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (i) are not applicable Requirements to any other Person or the property or assets of Lawany other Person and (ii) were not put in place in anticipation of such event, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(ii3) this Agreement and of the other Credit Documents;
(iiitype described in Section 4.10(a)(4) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired arising or agreed to in the ordinary course of business and Financing Lease Obligations (i) that impose restrictions restrict in a customary manner the subletting, assignment or transfer of the nature discussed in clause any property or asset that is subject to a lease, license or Purchase Money Obligation or (iiiii) by virtue of Section 9.08(a) hereof on the any Lien on, or agreement to transfer, option or similar right with respect to any property so acquired;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into assets of, the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquiredSubsidiary;
(vi4) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary of the Company and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of such Subsidiaryof, the Restricted Subsidiary that is permitted by Section 4.13;
(vii5) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.contained in the terms governing any Debt if (as determined in good faith by the Board of Directors)
(viiii) the encumbrances or restrictions are ordinary and customary provisions for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(6) existing under or by reason of applicable law or any applicable rule, regulation or order;
(7) existing under or by reason of joint venture agreements agreements, minority equity investments and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets prohibit actions of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xitype described in Section 4.10(a) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment)above, which limitation is prohibitions are applicable only to the entity or assets that are the subject of such agreementsarrangements;
(xiv8) (A) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders customers or suppliers or (ii) other third parties supplied under contracts agreements entered into in the ordinary course of business, (B) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or arising assets of the Company or any Restricted Subsidiary in connection any manner material to the Company or such Restricted Subsidiary or adversely affect the ability of the Company to make interest and principal payments with any Permitted Liensrespect to the Notes or (C) pursuant to Interest Rate Protection Agreements; or
(xviii9) any encumbrances or restrictions of the type referred required pursuant to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingIndenture.
Appears in 1 contract
Sources: Indenture (J2 Global, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist come into existence or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party distribution on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or Subsidiary;
(B2) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary;
(ii3) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in However, Section 9.08(a4.10(a) shall above will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(i1) applicable Requirements of Law;
any agreement (iiincluding the Senior Credit Facility) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing in effect on the Second Restatement Effective Issue Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v2) any agreement or other instrument of with respect to a Person acquired by or merged or consolidated with or into that was not a Restricted Subsidiary of the Company or any Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes (or became) a Restricted Subsidiary of the Company and not incurred in connection with, or in contemplation of, such acquisition or at the time it merges with or into Person becoming a Restricted Subsidiary, provided that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary or assumed in connection the properties or assets of the Company or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) any agreement or instrument governing any Acquired Debt or other agreement of any Person or related to assets acquired by or merged into or consolidated with the acquisition of assets from Company or any Restricted Subsidiaries, so long as such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction (A) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets or subsidiaries of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture;
(vi4) contracts for the sale any applicable law or any requirement of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiaryany regulatory body;
(vii5) the security documents evidencing any Liens securing obligations or Indebtedness and that limit the right of the debtor to dispose of the assets subject to such Liens; provided that such Liens otherwise are permitted to be incurred pursuant to under the provisions of Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture4.08;
(ix6) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses restricting subletting or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course assignment of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which lease governing a leasehold interest of the Company or any Restricted Subsidiary is a party Subsidiary, or restrictions in licenses relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such assets or property, provided, however, that such encumbrances or restrictions do not materially impact the ability of the Company to make payments on the Notes when due as required by the terms of this Indenture;
(7) asset sale agreements with respect to asset sales permitted to be made under the provisions of Section 4.14 that limit the transfer of such assets pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided provided, however, that such agreement prohibits encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the encumbrance of solely applicable company, partnership, joint venture or other entity; and provided, further, however, that such encumbrances and restrictions do not materially impact the property or assets ability of the Company or such Restricted Subsidiary that are to make payments on the subject to such agreement, Notes when due as required by the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property terms of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiarythis Indenture;
(xi9) any encumbrance cash or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to other deposits, or net worth requirements or similar requirements, imposed by reason of an agreement that such Subsidiary is a party to suppliers or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not landlords under contracts entered into in anticipation the ordinary course of an Unrestricted Subsidiary becoming a Restricted Subsidiary and business;
(10) any such encumbrance or restriction does not extend to any assets or property other Credit Facility governing debt of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other IndebtednessGuarantor, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to by Section 9.04 hereof4.06; provided thatprovided, however, that such encumbrances or restrictions are not (in the judgment view of the CompanyBoard of Directors of the Company as expressed in a board resolution thereof) materially more restrictive, such incurrence will not materially impair any taken as a whole, than those contained in the Senior Credit Party's ability to make payments under the Obligations when dueFacility;
(xiii11) provisions limiting customary restrictions on the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising the Oil and Gas Business of the types described in connection with any the definition of Permitted LiensBusiness Investments; orand
(xviii12) this Indenture, or any encumbrances or restrictions of the type referred to in clauses (i)agreement, (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingrefinancing that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (11), or in this clause (12); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect taken as a whole than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Sandridge Energy Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Credit Party to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party on its Capital Stock (or with respect to any other interest or participation in, or measured by, its profits profits) to the Company or owned any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) pay any liabilities owed to the Company or any of Restricted Subsidiary;
(3) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed shall not be deemed a restriction on the ability to any Credit Party;
(ii) make loans or advances to any Credit Partyadvances); or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary.
(b) The restrictions in Section 9.08(a4.11(a) shall will not apply to encumbrances or restrictions:
(1) existing under, by reason of or with respect to the Existing Indebtedness, the Security Documents or any other agreements in effect on the Issue Date and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, taken as a whole, are not, as determined by the Company in good faith, materially more restrictive than those contained in the Security Documents, Existing Indebtedness or such other agreements, as the case may be, as in effect on the Issue Date;
(2) set forth in this Indenture, the Notes and the Note Guarantees;
(3) existing under or by reason of:
(i) of applicable Requirements of Lawlaw, rule, regulation or order;
(ii) this Agreement and the other Credit Documents;
(iii) contractual encumbrances existing on the Second Restatement Effective Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary which was in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired;
(vi5) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(vii6) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii7) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) affect the Company’s ability to make anticipated principal or interest payment on the Notes in any material respect (in each case as determined by the Company in good faith);
(8) that restrict distributions or transfer by a Restricted Subsidiary if such restrictions exist under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, that Restricted Subsidiary and are pending such sale or other disposition;
(9) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent imposing restrictions of the type described in clause (4) of Section 4.11(a) on the property subject to such lease;
(10) arising from customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of businessbusiness and which the Board of Directors of the Company determines in good faith will not adversely affect the Company’s ability to make payments of principal or interest on the Notes;
(11) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.06 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness and, in case of Collateral, is pursuant to the Security Documents and the Intercreditor Agreement;
(12) existing pursuant to any agreement or instrument relating to Indebtedness or Preferred Stock of a Restricted Subsidiary permitted to be Incurred under this Indenture following the Issue Date if (A) the encumbrances or restrictions are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Company) and (B) either (x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company determines that such encumbrance or any Restricted Subsidiary is restriction will not adversely affect the Company’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a party default in respect of a payment or financial maintenance covenant default in respect of such Indebtedness;
(13) customary provisions in (x) joint venture agreements entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction business with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent Equity Interests subject to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided thatjoint venture and (y) operating or other similar agreements, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment)the entering into of such transaction, which limitation is applicable only to the assets that are the subject of such those agreements;
(xiv14) customary provisions restricting subletting encumbrance or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customersrestriction under purchase money obligations for property acquired, lenders or suppliers or (ii) other third parties under contracts entered into IRUs and Capital Lease Obligations in the ordinary course of business to the extent imposing restrictions on the property so acquired;
(15) any encumbrance or arising restriction of a Receivables Subsidiary effected in connection with any Permitted Liensa Qualified Receivables Financing; orprovided, however, that such restrictions apply only to such Receivables Subsidiary and its assets;
(xviii16) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company that is Incurred subsequent to the Issue Date pursuant Section 4.03, provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Company’s ability to make anticipated principal or interest payment on the Notes (as determined by the Company in good faith);
(17) existing under, by reason of or with respect to Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the agreements governing that Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(18) Indebtedness of Foreign Subsidiaries permitted to be Incurred pursuant to the provisions of Section 4.03; and
(19) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i1) through (xvii18) of this Section 9.08(b)above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect as a whole with respect to such encumbrance and other encumbrances or restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist come into existence or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
(i) (A1) pay dividends or make any other distributions to any Credit Party distribution on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or owned by the Company or any other Restricted Subsidiary or Subsidiary;
(B2) pay any Indebtedness owed to the Company or any Credit Partyother Restricted Subsidiary;
(ii3) make loans or advances to the Company or any Credit Partyother Restricted Subsidiary; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any other Restricted Subsidiary.
(b) The restrictions in However, Section 9.08(a4.10(a) shall will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(i1) applicable Requirements of Law;
any agreement (ii) this including the Senior Credit Facility, the Intercreditor Agreement and the other Credit Security Documents;
(iii) contractual encumbrances existing in effect on the Second Restatement Effective Issue Date;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v2) any agreement or other instrument of with respect to a Person acquired by or merged or consolidated with or into that was not a Restricted Subsidiary of the Company or any Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes (or became) a Restricted Subsidiary of the Company and not incurred in connection with, or in contemplation of, such acquisition or at the time it merges with or into Person becoming a Restricted Subsidiary, provided that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary or assumed in connection the properties or assets of the Company or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) any agreement or instrument governing any Acquired Debt or other agreement of any Person or related to assets acquired by or merged into or consolidated with the acquisition of assets from Company or any Restricted Subsidiaries, so long as such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction (A) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets or subsidiaries of the Person so acquired and its Subsidiaries or the property or assets Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture;
(vi4) contracts for the sale any applicable law or any requirement of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiaryany regulatory body;
(vii5) the security documents evidencing any Liens securing obligations or Indebtedness and that limit the right of the debtor to dispose of the assets subject to such Liens; provided that such Liens otherwise are permitted to be incurred pursuant to under Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture4.08;
(ix6) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses restricting subletting or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course assignment of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which lease governing a leasehold interest of the Company or any Restricted Subsidiary is a party Subsidiary, or restrictions in licenses relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such assets or property, provided, however, that such encumbrances or restrictions do not materially impact the ability of the Company to make payments on the Notes when due as required by the terms of this Indenture;
(7) asset sale agreements with respect to asset sales permitted to be made under Section 4.14 that limit the transfer of such assets pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided provided, however, that such agreement prohibits encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the encumbrance of solely applicable company, partnership, joint venture or other entity; and provided, further, however, that such encumbrances and restrictions do not materially impact the property or assets ability of the Company or such Restricted Subsidiary that are to make payments on the subject to such agreement, Notes when due as required by the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property terms of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiarythis Indenture;
(xi9) any encumbrance cash or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to other deposits, or net worth requirements or similar requirements, imposed by reason of an agreement that such Subsidiary is a party to suppliers or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not landlords under contracts entered into in anticipation the ordinary course of an Unrestricted Subsidiary becoming a Restricted Subsidiary and business;
(10) any such encumbrance or restriction does not extend to any assets or property other Credit Facility governing debt of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other IndebtednessGuarantor, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to under Section 9.04 hereof4.06; provided thatprovided, however, that such encumbrances or restrictions are not (in the judgment view of the CompanyBoard of Directors of the Company as expressed in a board resolution thereof) materially more restrictive, such incurrence will not materially impair any taken as a whole, than those contained in the Senior Credit Party's ability to make payments under the Obligations when dueFacility;
(xiii11) provisions limiting customary restrictions on the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising the Oil and Gas Business of the types described in connection with any the definition of Permitted LiensBusiness Investments; orand
(xviii12) this Indenture, or any encumbrances or restrictions of the type referred to in clauses (i)agreement, (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingrefinancing that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (11), or in this clause (12); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect taken as a whole than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Sandridge Energy Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party of the Company to:
(i) (A1) pay dividends or make any other distributions to the Company or any Credit Party Restricted Subsidiary of the Company
(a) on its Capital Stock or Stock, or
(b) with respect to any other interest or participation in, or measured by, its profits profits, or;
(2) repay any Indebtedness or owned by any other obligation owed to the Company or any Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Partyof the Company;
(ii3) make loans or advances or capital contributions to the Company or any Credit Partyof its Restricted Subsidiaries; or
(iii4) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries; except for such encumbrances or restrictions existing under or by reason of:
(i1) applicable Requirements of Lawencumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions were in effect on the Issue Date, including without limitation pursuant to the Senior Credit Facility;
(ii2) this Agreement Indenture, the Notes and the other Credit DocumentsGuarantees;
(iii3) contractual encumbrances existing on the Second Restatement Effective Dateapplicable law;
(iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
(v4) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
(vi5) contracts for customary provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness;
(6) Refinancing Indebtedness; provided that such restrictions are not materially more restrictive than those contained in the agreements governing the Indebtedness being extended, including refinanced, renewed, replaced, defeased or refunded;
(7) customary restrictions in security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(8) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi9) any encumbrance agreement relating to a Sale and Lease-Back transaction or restriction a Capitalized Lease Obligation, but only on the property subject to such transaction or Capitalized Lease Obligation and only to the extent that such restrictions or encumbrances are customary with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to Sale and Lease-Back transaction or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted LiensCapitalized Lease Obligation; or
(xviii10) any other agreement, instrument or document relating to Senior Indebtedness hereafter in effect, provided that the terms and conditions of such encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no are not materially more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement encumbrances or refinancingrestrictions imposed in connection with the Senior Credit Facility as in effect on the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Brickman Group LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Issuers will not, and shall will not permit any of their Restricted Subsidiary that is not a Credit Party Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Credit Party to:
of an Issuer to (i) (Aa)(i) pay dividends or make any other distributions to an Issuer or any Credit Party Restricted Subsidiary of an Issuer (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits or owned by the Company (ii) repay any Indebtedness or any other obligation owed to an Issuer or any Restricted Subsidiary or of an Issuer, (B) pay any Indebtedness owed to any Credit Party;
(iib) make loans or advances or capital contributions to an Issuer or any Credit Party; or
of its Restricted Subsidiaries or (iiic) sell, lease or transfer any of its properties or assets to the Company an Issuer or any of their Restricted Subsidiary.
(b) The restrictions in Section 9.08(a) shall not apply to Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable Requirements of Law;
encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date, (iiii)(x) this Agreement Indenture, the Notes and the other Credit Documents;
Guarantees and (y) the Senior Notes Indenture, the Senior Notes and the Senior Guarantees, (iii) contractual encumbrances existing on the Second Restatement Effective Date;
applicable law, (iv) purchase money obligations for property acquired in the ordinary course of business and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 9.08(a) hereof on the property so acquired;
Senior Credit Facility, (v) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its SubsidiariesPerson, or the property or assets of the Person so acquired and its Subsidiaries or (including any Subsidiary of the property or assets Person), so acquired;
, (vi) contracts for customary non-assignment provisions in leases or other agreements entered in the sale ordinary course of assetsbusiness and consistent with past practices, including (vii) Refinancing Indebtedness; provided that such restrictions are no more restrictive than those -------- contained in the agreements governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, (viii) customary restrictions in security agreements or mortgages securing Indebtedness of an Issuer or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages or (ix) customary restrictions with respect to a Restricted Subsidiary of the Company an Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(vii) Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 9.01 and Section 9.04.
(viii) customary provisions in joint venture agreements and other similar agreements or arrangements relating solely to such joint venture;
(ix) customary provisions contained in contracts, leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business
(x) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xi) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(xii) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Second Restatement Effective Date pursuant to Section 9.04 hereof; provided that, in the judgment of the Company, such incurrence will not materially impair any Credit Party's ability to make payments under the Obligations when due;
(xiii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any Restricted Subsidiary;
(xv) customary provisions restricting assignment of any agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xvi) restrictions arising in connection with cash or other deposits permitted pursuant to Section 9.01; and
(xvii) restrictions on cash or other deposits or net worth imposed by (i) customers, lenders or suppliers or (ii) other third parties under contracts entered into in the ordinary course of business or arising in connection with any Permitted Liens; or
(xviii) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 9.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvii) of this Section 9.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Coaxial LLC)