Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary; (2) pay any Indebtedness 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. (b) The provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions: (1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary; (3) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced; (4) in the case of clause (4) of Section 4.05(a): (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 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or (6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if: (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 3 contracts
Sources: Indenture (Tw Telecom Inc.), Indenture (Tw Telecom Inc.), Indenture (Tw Telecom 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;,
(3) make loans or advances to the Company or any other Restricted Subsidiary; Subsidiary or
(4) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall not restrict any encumbrances or restrictions:
(1) existing on in the Closing Date Notes, the Subsidiary Guarantees, the Indenture, the Security Documents, or under any Permitted Priority Secured Indebtedness of the Company or any other agreements in effect on the Closing DateSubsidiary Guarantor or Permitted Priority Subsidiary Guarantee of any Subsidiary Guarantor, and any extensions, refinancings, renewals renewals, supplements, amendments or replacements of such any of the foregoing agreements; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, refinancingsrefinancing, renewals renewal, supplement, amendment or replacements replacement, taken as a whole, 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 renewed, supplemented, amended or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) 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 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, and any extensions, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, 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 Section 4.05(a):
paragraph (Aa), that (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;
(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, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 3 contracts
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by to the Company or any other of its Restricted Subsidiary;
(2) Subsidiaries, or pay any Indebtedness owed to the Company or any other of its Restricted SubsidiarySubsidiaries;
(3ii) make loans or advances to the Company or any other of its Restricted SubsidiarySubsidiaries; or
(4iii) sell, lease or transfer any of its property properties or assets to the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions restrictions set forth in clause (a) of Section 4.05(a) 4.09 shall not restrict any apply to encumbrances or restrictionsrestrictions existing under, by reason of or with respect to:
(1i) existing on the Closing Date Senior Credit Agreement, any Existing Indebtedness, Capital Stock or any other agreements or instruments, in each case in effect on the Closing Date, Issue Date and any amendments, restatements, modifications, renewals, extensions, refinancingssupplements, renewals increases, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of the Chief Executive Officer and the Chief Financial Officer of the Company, no more restrictive, taken as a whole, than those contained in the applicable agreements or instruments as in effect on the Issue Date;
(ii) this Indenture, the Notes and the Subsidiary Guarantees;
(iii) applicable law, rule, regulation, order, approval, permit or similar restriction;
(iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such agreementsacquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, however, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, refinancingssupplements, renewals increases, refundings, replacements or replacements are refinancings are, in the reasonable good faith judgment of the Chief Executive Officer and Chief Financial Officer of the Company, no less favorable in any material respect to the Holders more restrictive, taken as a whole, 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 on the date of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictionsacquisition; provided, howeverfurther, that the encumbrances and restrictions in any such extensionsthat, 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, renewed or replaced;
(4) in the case of clause (4) Indebtedness, such Indebtedness was permitted by the terms of Section 4.05(a):
(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 assetthis Indenture to be incurred;
(Bv) existing by virtue customary non-assignment provisions in contracts, leases and licenses (including, without limitation, licenses 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
(Cintellectual property) arising or agreed to entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5vi) with respect to a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into for the sale or other disposition of the Equity Interests in, or all or substantially all of the Capital Stock of, properties or property and assets of, such a Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 , that restricts distributions by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any applicable Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting pending the sale or other disposition disposition;
(vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of property the Chief Executive Officer and Chief Financial Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(viii) Liens permitted to be incurred under Section 4.08 that limit the right of the debtor to dispose of the assets subject to such Liens;
(ix) the issuance of preferred stock by a Restricted Subsidiary or assets the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to Section 4.06 and the terms of such preferred stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(x) other Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into after the Issue Date in accordance with Section 4.06; provided that secure the provisions relating to such encumbrance or restriction contained in such Indebtedness of are not materially less favorable to the Company or any of and its Restricted Subsidiaries, taken as a whole, in the reasonable good faith judgment of the Chief Executive Officer and Chief Financial Officer of the Company, than the provisions contained in the Senior Credit Agreement as in effect on the Issue Date;
(xi) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(xii) Hedging Obligations permitted from time to time under this Indenture;
(xiii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiv) with respect only to encumbrances or restrictions of the type referred to in clause (iii) of Section 4.09(a):
(A) customary nonassignment provisions (including provisions forbidding subletting) in leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in oil and gas properties to the extent such provisions restrict the transfer of the lease, the property leased thereunder or the other interests therein;
(B) provisions limiting the disposition or distribution of assets or property in, or transfer of Capital Stock of, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into (i) in the ordinary course of business, or (ii) with the approval of the Company’s Board of Directors, which limitations are applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(C) Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments to the extent such encumbrance or restriction restricts the transfer of the property (including Capital Stock) subject to such Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments; and
(D) provisions restricting dispositions of real property interests in reciprocal easement agreements;
(xv) encumbrances or restrictions with respect to an Unrestricted Subsidiary entered into before it became a Restricted Subsidiary.
Appears in 3 contracts
Sources: Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas 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 to, 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 Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness 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.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any amendments, modifications, extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, refinancings, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) 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 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, and any amendments, modifications, extensions, refinancings, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 Lien on, on any of the property or assets of the Company or any a 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, reduce the value of the property or assets of the Company or any a Restricted Subsidiary in any manner material to the Company or any such Restricted Subsidiary;
(5) 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, such Restricted Subsidiary; or;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: :
(i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or or
(ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. ;
(7) arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to this Indenture and the Registration Rights Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment;
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness; or
(14) applicable to a Receivables Subsidiary and effected in connection with a Qualified Receivables Financing; provided, however, that such restriction or encumbrance applies only to such Receivables Subsidiary.
(c) Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: :
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of the Company or any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 3 contracts
Sources: Indenture (PAETEC Holding Corp.), Indenture (PAETEC Holding Corp.), Indenture (PAETEC 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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by Interests to the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply to the Holders than those following encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(a) any encumbrance or restriction in existence on the Issue Date, including those under the Credit Agreement, the Existing Receivables Facility or the Leasing Facility and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of applicable law the Company, are no more restrictive in any material respect, taken as a whole, with respect to such dividend or required by any regulatory authority having jurisdiction over other payment restrictions, than those contained in these agreements on the Company Issue Date or any Restricted Subsidiaryrefinancings thereof;
(3b) existing any encumbrance or restriction which exists with respect to any Person or the an acquired property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing in existence at the time of such acquisition and not incurred in contemplation thereofpursuant to an agreement, which so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(c) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person becoming 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 becoming a Restricted Subsidiary;
(d) any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement containing any encumbrance or restriction referred to in the foregoing clauses (a) through (c), so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that long as the encumbrances and restrictions contained in any such extensions, renewals or replacements refinancing agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(4e) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(f) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(g) any encumbrance or restriction under this Indenture; or, the Notes and the Note Guarantees;
(Ch) arising any encumbrance or agreed restriction under a contract for the sale or other disposition of assets or Capital Interests, including, without limitation, any agreement for the sale or other disposition of a Subsidiary, that restricts distributions of the applicable assets or Capital Interests to be sold, or of any assets of a Subsidiary to be sold, pending such sale or other disposition;
(i) restrictions on cash and other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(j) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, not relating to asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(k) any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material restriction with respect to the Company or a Restricted Subsidiary (or any Restricted Subsidiaryof its property or assets) imposed by customary provisions in Hedging Obligations or Swap Contracts, in each case, not entered into for speculative purposes;
(5l) with respect Purchase Money Debt and Capital Lease Obligations permitted under this Indenture for property acquired in the ordinary course of business that impose restrictions on that property so acquired of the nature described in clause (iii) of the first paragraph of this Section 4.8;
(m) Liens securing Debt otherwise permitted to be incurred under this Indenture, including pursuant to Section 4.12, that limit the right of the debtor to dispose of the assets subject to such Liens;
(n) any Non-Recourse Receivable Subsidiary Indebtedness or other contractual requirements of a Receivable Subsidiary that is a Restricted Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the receivables 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 related assets of, such Restricted Subsidiary; or
(6) contained described in the terms definition of any Indebtedness or any agreement pursuant Qualified Receivables Transaction which are subject to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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)Qualified Receivables Transaction; and
(Co) any other agreement governing Debt entered into after the Company determines Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the date of the Incurrence of such Indebtedness Issue Date with respect to that any such encumbrance or restriction would not be expected Restricted Subsidiary pursuant to materially impair the Company’s ability to make principal or interest payments agreements in effect on the NotesIssue Date. Nothing contained in this Section 4.05 4.8 shall prevent the Company or any Restricted Subsidiary from: from (1i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 4.12 or (2ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Company or any of its Restricted SubsidiariesSubsidiaries Incurred in accordance with Section 4.9 and Section 4.12.
Appears in 2 contracts
Sources: Indenture (Triumph Group Inc), Indenture (Triumph Group 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 to, to create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Date in this Indenture; (ii) existing on the Acquisition Date in the Existing Indentures, the Senior Secured Credit Facilities or any other agreements (including the Concession Title) in effect on the Closing Date or in effect on June 16, 1997 or on the Acquisition Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
, (2iii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law, (3iv) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4v) in the case of clause (4) transfers of Section 4.05(a):
any property or assets of a Restricted Subsidiary to the Company or any other Restricted Subsidiary (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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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;
, (5vi) 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, of or property and assets of, such Restricted Subsidiary; or
or (6vii) contained in for the terms benefit of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event holder of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the NotesLien permitted under Section 4.09. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Kansas City Southern), Indenture (TFM Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in clause (b) below, the Company shall and Parent will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on or in respect of any Capital Stock Equity Interests of such a Restricted Subsidiary owned by the Company Parent or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to to, or Guarantee any Debt or other obligations of, or make any Investment in, the Company Company, Parent or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aclause (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the Indenture or any other agreements in effect on the Closing Issue Date, and any amendments, modifications, restatements, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, refinancingsmodification, renewals restatement, extension, renewal, replacement or replacements are refinancing are, taken as a whole, in the good faith judgment of the Company or Parent, as the case may be, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being amended, modified, restated, extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3iii) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company Company, Parent or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquired, event and any amendments, modifications, restatements, extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, renewals modification, restatement, extension, renewal, replacement or replacements are refinancing are, taken as a whole, in the good faith judgment of the Company or Parent, as the case may be, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being amended, modified, restated, extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in paragraph (a)(iv) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, including the LGI-Chile Shareholders’ Agreement and the LGI-Colombia Shareholders’ Agreement and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar property Person (in each case relating solely to the respective partnership, limited liability company, joint venture or asset;
similar Person) or (Biii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of of, the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(C) arising or agreed to in the ordinary course of businessCompany, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company Parent or any Restricted Subsidiary;
(5v) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.14;
(6A) contained in the terms of governing any Indebtedness Debt if (as determined in good faith by the Company or any agreement pursuant to which such Indebtedness was issued if:
(AParent, as the case may be) the encumbrance or restriction either: (i) applies only in the event encumbrances or restrictions are ordinary and customary for a financing of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or that type and (ii) is contained in a Credit Agreement;
the encumbrances or restrictions either (Bx) would not, at 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not time agreed to, be expected to materially impair adversely affect the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any Guarantor to make payments on the Notes or (y) in the case of its Restricted Subsidiaries that secure Indebtedness of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Company Noteholders than those contained in the agreements governing the Debt being refinanced; or
(B) required pursuant to the Indenture, the Notes or any of its Restricted SubsidiariesNote Guaranty.
Appears in 2 contracts
Sources: Indenture (GeoPark LTD), Indenture (GeoPark Holdings LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in Section 4.07(b), the Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Parent Guarantor or any other Restricted Subsidiary;
(2ii) pay any Indebtedness or other obligation owed to the Company Parent Guarantor or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary; or
(4iv) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aSection 4.07(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on in or as contemplated by the Closing Date or any other agreements as in effect on the Closing Exchange Date, or in the Notes, the Parent Guarantee, the Subsidiary Guarantees, this Indenture, the Shared Security Documents, the First Ranking Facility, the First Ranking Facility Parent Guarantee, the First Ranking Facility Subsidiary Guarantees, each as of the Exchange Date, or any security documents with respect to the Non-Shared Collateral, and any amendments, extensions, refinancings, renewals or replacements of such any of the foregoing agreements; provided, however, provided that the encumbrances and restrictions in any such extensionsamendments, refinancingsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, are no less favorable more restrictive 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;
(2ii) existing under or by reason of applicable law law, rule, regulation, license, concession, approval decree or required order issued by any regulatory authority having jurisdiction over the Company government or any Restricted Subsidiaryagency thereof;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by the Company Parent Guarantor 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 than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, are no less favorable more restrictive 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;
(4iv) that otherwise would be prohibited by the provision described in Section 4.07(a)(iv) if they arise, or are agreed to in the case ordinary course of clause (4) of Section 4.05(a):
business and, that (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;
(B) existing exist by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of the Company Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
Indenture or (C) arising or agreed to in the ordinary course of business, do not relating relate to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent Guarantor or any Restricted Subsidiary in any manner material to the Company Parent Guarantor or any Restricted Subsidiary;
(5v) 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, such Restricted SubsidiarySubsidiary that is permitted by Section 4.03, Section 4.08 and Section 4.11;
(vi) with respect to the Parent Guarantor or any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into in respect of Indebtedness permitted to be Incurred under Section 4.03 if, as determined in good faith by the Board of Directors, such encumbrances or restrictions (x) are customary for such types of agreements and (y) would not at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payments on the Notes and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii) existing in customary provisions in joint venture agreements and other similar agreements permitted under this Indenture, to the extent such encumbrance or restriction relates to the activities or assets of a party to such joint venture and if, as determined by the Board of Directors, (A) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (B) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make the required payments on the Notes, the Parent Guarantor to fulfill its obligations under the Parent Guarantee or the Subsidiary Guarantors to fulfill their obligations under the applicable Subsidiary Guarantees; or
(6ix) customary provisions contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only agreements evidencing Liens incurred in the event of a payment default or non-compliance accordance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSection 4.05.
Appears in 2 contracts
Sources: Indenture (Energy Resources Rail LLC), Indenture (Enrestechnology 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 (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by (or with respect to any other interest or participation in, or measured by, its profits) to the Company or any other Restricted SubsidiarySubsidiary (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 Indebtedness liabilities owed to the Company or any other 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 SubsidiarySubsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(4) sell, lease or transfer any of its property properties or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.10(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under, by reason of or with respect to:
(1) existing on the Closing Date Existing Indebtedness or any other agreements in effect on the Closing Date, Issue Date and any amendments, modifications, restatements, renewals, extensions, refinancingssupplements, renewals refundings, replacements or replacements of such agreementsrefinancings thereof; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, renewals taken as a whole, are not, as determined by the Company or replacements are no less favorable a direct or indirect parent of the Company in any material respect to the Holders good faith, materially more restrictive than those encumbrances contained in the Existing Indebtedness or restrictions that are then such other agreements, as the case may be, as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(2) existing under this Indenture, the Notes and the Note Guarantees and other documents relating to this Indenture, the Notes or the Note Guarantees;
(3) applicable law, rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by reason of applicable law or required by any regulatory authority having jurisdiction over merged or consolidated with or into the Company or any Restricted Subsidiary;
Subsidiary that was in existence at the time of such acquisition (3) existing with respect but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Company or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not incurred in contemplation thereof, which so acquired;
(5) customary encumbrances or restrictions are not contained in contracts or agreements for the sale of assets applicable to any Person such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the property or assets of any Person other than such Person or the property Capital Stock or assets of such Person so acquired, and any extensions, renewals Restricted Subsidiary;
(6) restrictions on cash or replacements other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Holders than those business;
(7) encumbrances or restrictions that are then in effect and that are being extended, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce (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 SubsidiarySubsidiary 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 or a direct or indirect parent of the Company in good faith);
(5) 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 a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into 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 Restricted Subsidiary; orsale or other disposition;
(69) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the terms ordinary course of any 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 entered into in the ordinary course of business 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 Company’s ability to make payments of principal or interest on the Notes;
(11) Secured Indebtedness or 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 pursuant or instrument relating to which such Indebtedness was issued if:
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 encumbrance encumbrances or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is restrictions are not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company or a direct or indirect parent of the Company); and
) and (CB) either (x) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair adversely affect the Company’s ability to make principal or and interest payments on the Notes. Nothing contained Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a default in this Section 4.05 shall prevent 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 with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(14) 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 restriction of 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 from: 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 or a direct or indirect parent of the Company in good faith);
(17) 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 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 4.03; and
(19) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) creatingthrough (18) above; provided that such amendments, incurringmodifications, assuming restatements, renewals, increases, supplements, refundings, replacements or suffering to exist any Liens otherwise permitted refinancings are, in Section 4.09 or (2) restricting the sale or other disposition of property or assets good faith judgment of the Company or any of its Restricted Subsidiaries that secure Indebtedness a direct or indirect parent of the Company Company, not materially more restrictive as a whole with respect to such encumbrances or any of its Restricted Subsidiariesrestrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Indenture (Cogent Communications Holdings, Inc.), Indenture
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 4.11(b), the Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.11(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date as provided for in this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing with respect to any Person, or to the Property of any Person, at the time such Person or the property or assets of such Person Property is acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions restrictions: (A) are not applicable to any other Person or the property or assets Property of any Person other than such Person or the property or assets Person; and (B) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictionsany of the foregoing; provided, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in Section 4.11(a)(iv) arising or agreed to in the case ordinary course of clause (4) of Section 4.05(a):
business (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset Property that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(B) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar 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 IndebtednessProperty of, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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 Property of, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.13;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreementRestricted Subsidiary and imposed by any agreement governing Debt of any Restricted Subsidiary that is permitted to be Incurred pursuant to Section 4.07; or (ii) is contained in a Credit Agreement;
(B) provided that 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would transactions and will not be expected to materially impair affect the Company’s ability to make principal pay interest or interest payments principal, when due, on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any ;
(vii) with respect to a Restricted Subsidiary from: (1) creatingand imposed pursuant to a customary provision in a joint venture, incurringasset sale, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the stock sale agreements or other disposition similar agreement with respect to such Restricted Subsidiary that was entered into in the ordinary course of property or assets of business;
(viii) imposed by the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.standard loan documentation in connection with loans from (a)
Appears in 2 contracts
Sources: Indenture (Cosan Ltd.), Indenture (Cosan Ltd.)
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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt 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.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in the Credit Agreement, this Indenture or any other agreements or instruments in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, that provided the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are no refinancing are, taken as a whole, not materially less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted SubsidiarySubsidiary or any of their businesses;
(3) existing (including, without limitation, as part of the terms of any Acquired Debt)
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are no refinancing are, taken as a whole, not materially less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) in the case of clause (4) of Section 4.05(a):
(A) that restrict restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract license or similar property contract, or asset;
the assignment or transfer of any lease, license or other contract, (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 contained in mortgages, pledges or agreed other security agreements securing Debt of a Restricted Subsidiary (permitted by this 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 this 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, not relating (G) pursuant to customary provisions contained in agreements, including, without limitation, any Indebtednessjoint venture agreements, and that do not, individually or instruments entered into in the aggregateordinary course of business (including but not limited to leases, reduce sale and leaseback agreements, asset sale agreements and joint venture and other similar agreements entered into in the value ordinary course of property business), or assets of the Company or any Restricted Subsidiary (H) pursuant to customary provisions in any manner material to the Company or any Restricted SubsidiaryHedging Agreements, permitted by this Indenture;
(5) with respect to a Restricted Subsidiary (or any of 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 the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.13;
(6) 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 Indebtedness or any agreement pursuant material respect to which such Indebtedness was issued if:the Noteholders than those contained in the agreements governing the Debt being refinanced;
(A7) the encumbrance any customary encumbrances or restriction either: restrictions contained in (i) applies only in any Credit Facilities extended to any Foreign Subsidiary of the event of a payment default or non-compliance with respect Company permitted to a financial covenant contained in such Indebtedness or agreement; be Incurred under this Indenture or (ii) is contained Debt, Preferred Stock or Disqualified Stock permitted to be Incurred under this Indenture; provided that the Board of Directors determines in good faith that such restrictions will not have a Credit 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 material adverse effect on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make pay principal or and interest payments on the Notes. Nothing contained ;
(8) any customary restrictions imposed in connection with a Securitization Financing; or
(9) required pursuant to this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIndenture.
Appears in 2 contracts
Sources: Senior Notes Indenture (Black Knight Financial Services, Inc.), Senior Notes Indenture (Lender Processing Services, Inc.)
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 Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(2) pay any Indebtedness owed to the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(3) make loans or advances to the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries; or
(4) transfer any of its property or assets to the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of Section 4.05(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on under, by reason of or with respect to this Indenture, the Closing Date or Credit Agreement and any other agreements agreement in effect on the Closing Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that in the determination of the Board of Directors of the Parent made in good faith (which determination will be conclusive and binding absent manifest error) the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements are no less favorable in any material respect to the Holders not materially more restrictive, taken as a whole, than those encumbrances contained in the Credit Agreement or restrictions that are then such other agreements as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(2) existing under or under, by reason of applicable law or required by with respect to any regulatory authority having jurisdiction over other Indebtedness of the Company Restricted Subsidiaries permitted under this Indenture; provided, however, that the Board of Directors of Parent have determined in good faith (which determination will be conclusive and binding absent manifest error) that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair in any Restricted Subsidiarymaterial respect the Issuers’ and the Guarantors’ ability to make payments on the Notes when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company an Issuer or any of its Restricted SubsidiarySubsidiaries, existing at the time of such acquisition and not incurred 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, acquired and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are no less favorable entered into in any material the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to the Holders than those encumbrances such Person or restrictions that are then its property or assets as in effect on the date of such acquisition as determined by such Person in good faith (which determination will be conclusive and that are being extended, renewed or replacedbinding absent manifest error);
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) existing under, by reason of or with respect to, this Indenture, the Notes or the Guaranties;
(6) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(7) Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(8) in the case of clause (4) of Section 4.05(a4.13(a)(4):
(Ai) 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;,
(Bii) 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 an Issuer or any of its Restricted Subsidiary not otherwise prohibited by this Indenture; ,
(iii) existing under, by reason of or with respect to (1) purchase money obligations for property acquired in the ordinary course of business or (2) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(Civ) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent or any of its Restricted Subsidiary Subsidiaries in any manner material to Parent and its Restricted Subsidiaries taken as a whole;
(9) with respect to a Restricted Subsidiary that is a Subsidiary Guarantor that 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 Company 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 Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(510) 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, such Restricted Subsidiary; orSubsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(611) contained in any license, permit or other accreditation with a regulatory authority entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(A12) the encumbrance on cash or restriction either: other deposits (i) applies only imposed by persons under contracts entered into in the event ordinary course of a payment default business or non-compliance with respect to a financial covenant contained in for whose benefit such Indebtedness cash or agreement; or deposit exists, (ii) is contained or net worth imposed by customers under contracts entered into in a Credit Agreementthe ordinary course of business or (iii) that arise in connection with Permitted Investments;
(B13) contained in any trading, netting, operating, construction, service, supple, purchase sale, or other agreement entered into in the ordinary course of business; provided such agreement restricts the encumbrance of solely the property or restriction is not materially more disadvantageous to assets that are the Holders subject of such agreement, the Notes than is customary in comparable financings (as determined by payment rights thereunder or the Company)proceeds thereof; and
(C14) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected of the type referred to materially impair in Section 4.13(a)(1) through (4) imposed by any extensions, refinancings, renewals or replacements of the Company’s ability contracts, instruments or obligations referred to make principal in clauses (1) through (14) of this Section 4.13(b); provided, that the encumbrances and restrictions in any such extensions, refinancings renewals or interest payments on replacements are no less favorable in any material respect, taken as a whole, to the Notes. holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 4.05 4.13 shall prevent the Company Parent or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) from restricting the sale or other disposition of property or assets of the Company Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuers or any of its their Restricted Subsidiaries. For purposes of determining compliance with this Section 4.13, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(3iii) make loans or advances to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary; or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict prohibit any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in this Indenture or any other agreements agreement in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
4.06, (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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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
(5v) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.06 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2A) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSubsidiaries or (B) creating, incurring, assuming or suffering to exist any Liens otherwise permitted pursuant to the indenture relating to the 1997 Senior Notes as in effect on the Deemed Closing Date.
Appears in 2 contracts
Sources: Indenture (Winstar Communications Inc), Indenture (Winstar Communications 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 Subsidiaries 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 Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company or any other of its Restricted SubsidiarySubsidiaries;
(2) make loans or advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to Subsidiary of the Company or any other Restricted SubsidiaryCompany; or
(43) transfer any of its property or assets to the Company or any other Restricted SubsidiarySubsidiary of the Company.
(b) The provisions of Section 4.05(a4.08(a) hereof shall not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date applicable law, rule, regulation or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 replacedorder;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over this Indenture and the Company or any Restricted SubsidiaryNotes;
(3) existing with respect to customary non-assignment provisions of any Person or the property or assets of such Person acquired by the Company contract 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 lease of any Person other than such Person or Restricted Subsidiary of the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replacedCompany;
(4) in any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, assignment properties or transfer assets of any property Person, other than the Person 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 the properties or assets of the Company Person so acquired;
(5) the Existing Facilities as each exists on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that any restrictions imposed pursuant to any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary with respect to facilities similar to the Existing Facilities (under the relevant circumstances) and will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes (as determined in good faith by the Board of Directors of the Company);
(6) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(7) restrictions on the transfer of assets (other than cash) held in a Restricted Subsidiary not otherwise prohibited by of the Company imposed under any agreement governing Indebtedness incurred in accordance with this Indenture; or;
(C8) provisions in agreements evidencing Permitted Funding Indebtedness that impose restrictions on the collateral securing such Indebtedness;
(9) arising restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(10) restrictions imposed by any agreement to sell assets or agreed Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(11) any agreement or instrument governing Capital Stock of any Person that is acquired;
(12) the requirements of any Securitization, Warehouse Facility or MSR Facility that are exclusively applicable to any Securitization Entity, Warehouse Facility Trust, MSR Facility Trust or special purpose Subsidiary of the Company formed in connection therewith;
(13) customary provisions in joint venture and other similar agreements relating solely to such joint venture;
(14) customary provisions in leases, licenses and other agreements entered into in the ordinary course of business, not relating to any ;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(16) other Indebtedness, and that do not, individually Disqualified Capital Stock or in the aggregate, reduce the value Preferred Stock of property or assets Foreign Subsidiaries of the Company or any Restricted Subsidiary in any manner material permitted to be incurred subsequent to the Company or any Restricted Subsidiary;
(5) with respect to a Restricted Subsidiary and imposed Issue Date pursuant to an agreement Section 4.09 hereof that has been entered into for impose restrictions solely on the sale or disposition of all or substantially all Foreign Subsidiaries party thereto; provided that the restrictions will not materially affect the ability of the Capital Stock ofIssuers to pay the principal, or property interest and assets ofpremium, such Restricted Subsidiary; or
(6) contained in if any, on the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (Notes, as determined in good faith by the Company); and
(C17) the Company determines on the date any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Incurrence contracts, instruments or obligations referred to in clauses (2) through (4) and (6) through (14) of this Section 4.08(b); provided that such Indebtedness that any such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction would not be expected to materially impair refinancings are, in the good faith judgment of the Company’s ability Board of Directors whose judgment shall be conclusively binding, not materially more restrictive with respect to make principal or interest payments on the Notes. Nothing such dividend and other payment restrictions, taken as a whole, than those contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale dividend or other disposition of property payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesrefinancing.
Appears in 2 contracts
Sources: Indenture (Nationstar Sub1 LLC), Indenture (Nationstar Sub2 LLC)
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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person, or with respect to any property or assets, at the time the Person or the property or assets of such Person are acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (y) were not put in place in anticipation of such Person so acquired, event; and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances any of the foregoing, or restrictions; providedof any subsequent extension, howeverrenewal, that replacement or refinancing thereof, provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in the case of clause (4a)(iv) of Section 4.05(a):arising or agreed to
(A) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;,
(B) existing with respect to any assets comprising a Permitted Business in which the Company or any Restricted Subsidiary has ownership of an undivided interest, pursuant to the agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restrictions are consistent with the Company’s past practice, or
(C) by virtue of any transfer ofPermitted Lien on, or agreement to transfer, option or similar 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, of or property and assets of, such of the Restricted Subsidiary; orSubsidiary that is permitted by this Indenture;
(6vi) on the ability of Restricted Subsidiaries to consummate transactions of the type described in paragraph (a)(i), (ii), (iii) or (iv) provided for by any credit agreement or security document relating to Debt permitted to be incurred under this Indenture; provided that such restrictions are not more restrictive than the restrictions contained in this Indenture or the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(Bvii) required pursuant to Section 4.06(b)(ii);
(viii) imposed on any Joint Venture pursuant to customary limitations contained in the encumbrance constituent documents and agreements governing such Joint Venture; or
(ix) existing under any credit agreement or restriction security document relating to Debt incurred pursuant to clause (b)(x) or (b)(xi) under Section 4.06 or Permitted Refinancing Debt in respect thereof; provided that (a) such restrictions apply only to the Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries and (b) such Debt is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined Guaranteed by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Century California, LLC), Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) 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, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrances encumbrance or restrictionsrestriction; provided, however, 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;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness was issued if:
is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair the Company’s affect its ability to make principal or interest payments on the Notes, (D) if the aggregate principal amount of such Indebtedness exceeds the greater of (1) $5 million and (2) 5% of Consolidated EBITDA for the Four Quarter Period, the documents pursuant to which all such indebtedness in excess of such amount is outstanding expressly state that such Restricted Subsidiary shall be entitled to take the actions referred to in clauses (i) through (iv) of the first paragraph of this Section 4.05 in an amount not to exceed 50% of the consolidated net income of such Restricted Subsidiary (after making adjustments thereto in the nature of the adjustments referred to in the definition of "Adjusted Consolidated Net Income") and (E) the Investments made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a PRO RATA basis. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Econophone Inc), Indenture (Econophone Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (ai) The Company shall Except as provided below, the Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Parent Guarantor or any other Restricted Subsidiary;
(2) pay any Indebtedness owed to the Company Parent Guarantor or any other Restricted Subsidiary;
(3) make loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary; or
(4) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any other Restricted Subsidiary.
(bii) The provisions of clause (i) of this Section 4.05(a4.1(c) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Date or any other in agreements as in effect on the Closing Issue Date, in the Notes, the Note Guarantees, or this Indenture, and any extensions, refinancings, supplements, amendments, renewals or replacements of such any of the foregoing agreements; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, refinancingsrefinancing, renewals renewal or replacements replacement, taken as a whole, 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, supplemented, amended, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation, license, concession, approval, decree or required by any regulatory authority having jurisdiction over order applicable to the Company or any relevant Restricted Subsidiary;
(3) resulting from restrictions on cash or other deposits or other customary requirements imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(4) existing with respect to any Person or the property or assets of such Person Person, or relating to or existing under any Indebtedness or other obligations acquired or incurred by the Company Parent Guarantor 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 than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, supplements, amendments, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, are no not materially 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, supplemented, amended, renewed or replaced;
(45) that (x) otherwise would be prohibited by the provision described in clause (i)(4) of this Section 4.1(c) if they arise or are agreed to in the case ordinary course of clause business, (4) of Section 4.05(a):y)
(Ai) that restrict in a customary manner the subletting, assignment or other transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;
(Bii) existing exist by virtue of any transfer ofIndebtedness, Lien, agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of the Company Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
Indenture or (Ciii) arising or agreed to in the ordinary course of business, do not relating relate to any Indebtedness, and that or (z) do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent Guarantor or any Restricted Subsidiary in any manner material to the Company or any Parent Guarantor and its Restricted SubsidiarySubsidiaries taken as a whole;
(56) contained in any agreement pursuant to which Indebtedness not otherwise prohibited by this Indenture was Incurred; provided that the encumbrance or restriction applies only in the event of a default with respect to a Restricted Subsidiary and covenant contained in such Indebtedness; or
(7) imposed pursuant to an agreement that has been entered into for the a sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) that is contained in a Credit 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 permitted by the CompanySection 4.1(g); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Camposol Holding PLC), Indenture (Camposol Holding PLC)
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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary;
(2) pay any Indebtedness Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in this Indenture or in any other agreements in effect on the Closing Issue Date, and any amendment, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) existing existing:
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company Issuer or any Restricted Subsidiary, existing ; or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquired, event and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) of the type described in clause (a)(4) of this Section 4.09 arising or agreed to (i) in the case ordinary course of clause (4) of Section 4.05(a):
(A) business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(Bii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of 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 Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company Issuer or any Restricted Subsidiary;
(5) 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, such Restricted Subsidiary; orSubsidiary that is permitted by Section 4.12;
(6) contained in pursuant to the terms requirements of any Securitization, Warehousing Facility or Funding Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained any Securitization Entity, special purpose Subsidiary of the Issuer or any Restricted Subsidiary formed in such connection therewith, in each case that are exclusively applicable to any Securitization, Warehousing Facility, Funding Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders Financeable Assets of the Notes than is customary Issuer or any Restricted Subsidiary formed in comparable financings (as determined by connection therewith or that are, in the Company); and
(C) the Company determines on the date good faith judgment of the Incurrence of such Indebtedness that any such encumbrance or restriction would Issuer, not be reasonably expected to materially impair affect the CompanyIssuer’s ability to make principal or interest payments on the Notes. Nothing notes;
(7) contained in this Section 4.05 shall prevent an instrument governing or relating to Debt that is customary, based on general market conditions, and that are, in the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets good faith judgment of the Company Issuer’s senior management, not reasonably expected to materially affect the Issuer’s ability to make principal or any interest payments on the notes;
(8) required pursuant to this Indenture; or
(9) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity, its assets or the equity interests therein) entered in the ordinary course of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesbusiness.
Appears in 2 contracts
Sources: Indenture (Mr. Cooper Group Inc.), Indenture (Home Point Capital 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 (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by (or with respect to any other interest or participation in, or measured by, its profits) to the Company or any other Restricted SubsidiarySubsidiary (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 Indebtedness liabilities owed to the Company or any other 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 SubsidiarySubsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(4) sell, lease or transfer any of its property properties or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.10(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under, by reason of or with respect to:
(1) existing on the Closing Date Existing Indebtedness or any other agreements in effect on the Closing Date, Issue Date and any amendments, modifications, restatements, renewals, extensions, refinancingssupplements, renewals refundings, replacements or replacements of such agreementsrefinancings thereof; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, renewals taken as a whole, are not, as determined by the Company or replacements are no less favorable a direct or indirect parent of the Company in any material respect to the Holders good faith, materially more restrictive than those encumbrances contained in the Existing Indebtedness or restrictions that are then such other agreements, as the case may be, as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(2) existing under this Indenture, the Notes and the Note Guarantees and other documents relating to this Indenture, the Notes or the Note Guarantees;
(3) applicable law, rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by reason of applicable law or required by any regulatory authority having jurisdiction over merged or consolidated with or into the Company or any Restricted Subsidiary;
Subsidiary that was in existence at the time of such acquisition (3) existing with respect but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Company or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not incurred in contemplation thereof, which so acquired;
(5) customary encumbrances or restrictions are not contained in contracts or agreements for the sale of assets applicable to any Person such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the property or assets of any Person other than such Person or the property Capital Stock or assets of such Person so acquired, and any extensions, renewals Restricted Subsidiary;
(6) restrictions on cash or replacements other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Holders than those business;
(7) encumbrances or restrictions that are then in effect and that are being extended, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce (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 SubsidiarySubsidiary 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 or a direct or indirect parent of the Company in good faith);
(5) 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 a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into 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 Restricted Subsidiary; orsale or other disposition;
(69) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the terms ordinary course of any 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 entered into in the ordinary course of business 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 Company’s ability to make payments of principal or interest on the Notes;
(11) Secured Indebtedness or 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 pursuant or instrument relating to which such Indebtedness was issued if:
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 encumbrance encumbrances or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is restrictions are not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company or a direct or indirect parent of the Company); and
) and (CB) either (x) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair adversely affect the Company’s ability to make principal or and interest payments on the Notes. Nothing contained Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a default in this Section 4.05 shall prevent 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 with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(14) 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 restriction of 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 from: 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 or a direct or indirect parent of the Company in good faith);
(17) 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 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 4.03; and
(19) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) creatingthrough (18) above; provided that such amendments, incurringmodifications, assuming restatements, renewals, increases, supplements, refundings, replacements or suffering to exist any Liens otherwise permitted refinancings are, in Section 4.09 or (2) restricting the sale or other disposition of property or assets good faith judgment of the Company or any of its Restricted Subsidiaries that secure Indebtedness a direct or indirect parent of the Company Company, not materially more restrictive as a whole with respect to such encumbrances or any of its Restricted Subsidiariesrestrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Indenture (Cogent Communications Holdings, Inc.), Indenture
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Borrower or any other Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Company Borrower or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary; or
(4iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a9.4(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date February 20, 2004 or any other agreements in effect on the Closing DateFebruary 20, 2004, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 Term Loan B Lenders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by the Company Borrower or any Restricted Subsidiary, existing at the time of such acquisition and not incurred 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Holders Term Loan B Lenders than those encumbrances or restrictions that are then in effect and that are being extended, renewed or replaced;
(4iv) in the case of clause (4iv) of paragraph (a) of this Section 4.05(a):
9.4, (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 Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce the value of property or assets of the Company Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or any Restricted Subsidiary;
(5v) 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, such Restricted Subsidiary; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: either (i1) applies only in the event of a payment default or non-non compliance with respect to a financial covenant contained in such Indebtedness or agreement; agreement or (ii2) is contained in a Credit Agreement;
, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Term Loan B Lenders (as defined in this Agreement) than is customary in comparable financings (as determined by the Company); and
Borrower) and (C) the Company Borrower determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the CompanyBorrower’s ability to make principal or interest payments on the Notes. Term Loan B Loans.
(c) Nothing contained in this Section 4.05 9.4 shall prevent the Company Borrower or any Restricted Subsidiary from: from (1) creating, incurringIncurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 9.8 or (2) restricting the sale or other disposition of property or assets of the Company Borrower or any of its Restricted Subsidiaries that secure Indebtedness of the Company Borrower or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Time Warner Telecom Inc), Credit Agreement (Time Warner Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 4.08(b), the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.08(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements refinancing are (as determined in good faith by the Company), taken as a whole, no less favorable in any material respect to the Holders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law law, regulation, order, approval, license, permit, grant or required similar restriction, in each case, issued or imposed by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarya governmental authority;
(3iii) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted SubsidiarySubsidiary (including those existing by reason of Acquired Debt), existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person (other than such Person or the property or assets Subsidiaries of such the Person so acquired, ) and (y) were not put in place in anticipation of such event and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in the case of clause (4iv) of Section 4.05(a):
4.08(a) arising or agreed to in the ordinary course of business (including Debt permitted to be incurred, as set forth under Section 4.06, that imposes such restrictions) (A) that restrict in a customary manner the subletting, assignment assignment, licensing or transfer of any property or asset that is subject to a lease, license, conveyance license or contract other agreement or similar property or asset;
(B) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by this Indenture;
(6vi) consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(vii) contained in the terms of governing any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
Debt permitted under this Indenture if (as determined in good faith by the Company) (A) the encumbrance encumbrances or restriction either: (i) applies only in the event restrictions are ordinary and customary for a financing of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
that type and (B) the encumbrance encumbrances or restriction is not materially more disadvantageous to restrictions either would not, at the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not time agreed to, be expected to materially impair adversely affect the Company’s ability of the Company to make principal or interest payments on the Notes. Nothing contained Notes or any Guarantor to make payments in respect of its Note Guaranty;
(viii) required pursuant to this Indenture;
(ix) consisting of customary provisions in joint venture agreements, leases, licenses, purchase and sale or merger agreements and other agreements entered into in the ordinary course of business;
(x) that exist as a result of Permitted Liens;
(xi) under any customary provisions with respect to cash or other deposit or net worth requirements under agreements, instruments or contracts entered into in the ordinary course of business;
(xii) under any agreement, instrument or contract entered into in connection with the incurrence of Debt of the type described in Section 4.06(b)(xvi); or
(xiii) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xii) of this Section 4.05 shall prevent 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets good faith judgment of the Company Company, not materially more restrictive as a whole with respect to such encumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesrefinancing.
Appears in 2 contracts
Sources: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) 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, however, 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;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
; (3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, provided that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
; (4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
; (5v) 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, such Restricted Subsidiary; or
or (6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: either (i1) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; agreement or (ii2) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s either Obligors' ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Time Warner Telecom LLC), Indenture (Time Warner Telecom LLC)
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 Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(32) make loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(43) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a3.14(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 replacedapplicable law;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted SubsidiaryIndenture;
(3) existing the Bank Credit Facility as 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 restrictive 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replacedexistence on the Issue Date;
(4) in the case customary non-assignment provisions of clause (4) of Section 4.05(a):
(A) that restrict in a any contract and customary manner the subletting, provisions restricting 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 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 Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary subletting in any manner material to the Company or lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability 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;
(5) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, 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 or the properties or assets of the Person so acquired;
(6) restrictions with respect to a Restricted Subsidiary and of the Company imposed pursuant to an a binding agreement that which 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; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(7) customary restrictions imposed on the transfer of copyrighted or patented materials; or
(6) 8) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in Section 3.14(b)(5); provided, that such Refinancing agreement is not more restrictive with respect to such encumbrances or restrictions than those contained in the terms of any Indebtedness or any agreement pursuant referred to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or clause (ii) is contained in a Credit 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 Company5); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Baron Wire & Cable Corp.), Indenture (CCI International, 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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt 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.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in the Senior Credit Facility, the Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereof, 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) of the type described in clause (a)(4) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property property, including intellectual property, or asset that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(Bii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by the Indenture;
(6) contained in the terms of governing any Indebtedness or Permitted Refinancing Debt if the encumbrances and restrictions, are, taken as a whole, no less favorable in any agreement pursuant material respect to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only Noteholders than those contained in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreementagreements governing the Debt being refinanced;
(B7) the encumbrance or restriction is not materially more disadvantageous consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(8) required pursuant to the Holders Indenture;
(9) on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business consistent with past practice;
(10) consisting of customary provisions in joint venture agreements and other similar agreements entered into in the Notes than is customary in comparable financings (as determined by the Company)ordinary course of business consistent with past practice; and
(C11) imposed by any agreement relating to Debt permitted by the Company determines on Indenture, if such restrictions or conditions apply only to the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of securing such Debt and/or only to the Company Restricted Subsidiary incurring such Debt or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Seagate Technology)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, 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 Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness 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.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date (including encumbrances and restrictions existing on the Closing Date that are contained in the terms of the ITC^DeltaCom Notes) or any other agreements in effect on the Closing Date, and any amendments, modifications, extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, refinancings, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) 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 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, and any amendments, modifications, extensions, refinancings, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 Lien on, on any of the property or assets of the Company or any a 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, reduce the value of the property or assets of the Company or any a Restricted Subsidiary in any manner material to the Company or any such Restricted Subsidiary;
(5) 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, such Restricted Subsidiary; or;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: :
(i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or or
(ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. ;
(7) arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to this Indenture and the Registration Rights Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment; provided, however, that such restriction or encumbrance applies only to the Person that is the subject of such Investment or Permitted Investment, as applicable;
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness;
(14) customary guarantees by the Company of non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements entered into by the Subsidiary in the ordinary course of business; or
(15) applicable to a Receivables Subsidiary and effected in connection with a Qualified Receivables Financing; provided, however, that such restriction or encumbrance applies only to such Receivables Subsidiary.
(c) Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: :
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of the Company or any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Earthlink Inc)
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 Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Issuers to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers;
(2) pay any Indebtedness owed to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers;
(3) make loans or advances to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers; or
(4) transfer any of its property or assets to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers.
(b) The provisions of Section 4.05(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on under, by reason of or with respect to, this Indenture, the Closing Date or Notes, the Note Guarantees, the Credit Agreement, any Existing Indebtedness, any other agreements agreement in effect on the Closing Issue Date as in effect on the Issue Date, and any Transaction Agreement as in effect on its date, and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements are no less favorable in any material not materially more restrictive, taken as a whole, with respect to the Holders such dividend or other payment restrictions than those encumbrances contained in those agreements on the Issue Date or restrictions that are then in effect and that are being extendedsuch other date, refinanced, renewed or replacedas applicable;
(2) existing under or under, by reason of applicable law or required with respect to any Credit Facility or other Indebtedness permitted under this Indenture (and not included in clause (1) above); provided, however, that the encumbrances and restrictions contained in the agreement or agreements governing such Credit Facility or other Indebtedness (x) (A) are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement (with respect to other credit agreements or Indebtedness other than under an indenture and other than Permitted Mortgage Indebtedness or other mortgage Indebtedness) or this Indenture (with respect to other indentures), in each case, as in effect on the Issue Date, or (B) with respect to Permitted Mortgage Indebtedness or other mortgage Indebtedness, (i) are not materially more disadvantageous to the Holders than is customary in comparable financings and (ii) will not materially affect the Issuers’ ability to make principal or interest payments on the Notes (in each case as determined by Parent in good faith at the time any regulatory authority having jurisdiction over such Indebtedness is Incurred (and at the Company time of any modification of the terms of any such encumbrance or any Restricted Subsidiaryrestriction)) or (y) apply only during the occurrence of an event of default with respect to such Credit Facility or other Indebtedness;
(3) existing under, by reason of or with respect to applicable law, rule, regulation, decree or administrative or court order;
(4) existing with respect to any Person (including Indebtedness or Capital Stock of such Person) or the property or assets of such Person acquired by the Company Parent or any Restricted SubsidiarySubsidiary of Parent (or any such Person that otherwise becomes a Restricted Subsidiary of Parent including by designation or by merger or consolidation or sale of all or substantially all of its assets into or to Parent or another Restricted Subsidiary of Parent), existing at the time of such acquisition (or such Person so becoming a Restricted Subsidiary of Parent) 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, acquired (or such Restricted Subsidiary) and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are no less favorable entered into in any material the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to the Holders than those encumbrances such Person or restrictions that are then its property or assets as in effect and that are being extended, renewed on the date of such acquisition (or replacedsuch Person so becoming a Restricted Subsidiary of Parent);
(45) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements entered into in connection with a Permitted Business;
(6) in the case of clause (4) of Section 4.05(a4.13(a)(4):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to, or that is, a lease, license, conveyance or contract or similar property or asset;,
(Bii) other encumbrances or restrictions contained in or with respect to the Master Leases and the properties subject thereto,
(iii) 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 Parent or any Restricted Subsidiary of Parent not otherwise prohibited by this Indenture; ,
(iv) existing under, by reason of or with respect to (i) purchase money obligations for property acquired in the ordinary course of business or (ii) capital leases or operating leases, including purchase money Indebtedness, Capitalized Lease Obligations and other Indebtedness pursuant to be Incurred under Section 4.08(d)(17), that impose encumbrances or restrictions on the property so acquired or covered thereby, or (iii) a contract with respect to an Asset Sale, Sale and Leaseback Transaction, stock sale agreement or other transfer, conveyance or disposition permitted under this Indenture, which encumbrances or restrictions are applicable only to the property, assets or Capital Stock that are the subject of such contracts, or
(Cv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent or any Restricted Subsidiary of Parent in any manner material to the Company or any Parent and its Restricted SubsidiarySubsidiaries taken as a whole;
(57) 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, such Restricted Subsidiary; orSubsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(68) existing under, by reason of or with respect to Indebtedness permitted to be Incurred pursuant Section 4.08(d)(14), or other Permitted Refinancing Indebtedness permitted to be Incurred under, Section 4.08; provided, that the encumbrances and restrictions contained in the agreements governing such Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(Ai) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or ,
(ii) is contained in a Credit 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 Companygood faith judgment of Parent); , and
(Ciii) the Company Parent, in its good faith, determines on the date of the Incurrence of that such Indebtedness that any such an encumbrance or restriction would will not be expected to materially impair affect the Company’s Issuers’ ability to make principal or interest payments on the Notes. ;
(10) any encumbrance or restriction pursuant to Hedging Obligations or under Permitted Non-Recourse Guarantees;
(11) restrictions on deposits made to secure letters of credit or surety or other bonds issued in connection therewith or deposits 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 to secure letters of credit or surety or other bonds relating thereto);
(12) restrictions on the ability of any Restricted Subsidiary to make Investments in or transfer assets to any Person that is not a Subsidiary of such Restricted Subsidiary or that is not a direct or indirect parent of such Restricted Subsidiary; and
(13) any encumbrances or restrictions of the type referred imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or other refinancings of those agreements, instruments or obligations referred to in clauses (1) through (12) above, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or other refinancings are no more restrictive, taken as a whole, with respect to such encumbrances or restrictions than those contained in those agreements prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, restructuring, replacement or other refinancing.
(c) Nothing contained in this Section 4.05 4.13 shall prevent the Company Parent or any Restricted Subsidiary from: of Parent from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2i) restricting the sale or other disposition of property or assets of the Company Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuers or any of its their Restricted SubsidiariesSubsidiaries or (ii) creating, Incurring, assuming or suffering to exist any Liens otherwise permitted by this Indenture. For purposes of determining compliance with this Section 4.13, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary, or other subordination provisions in any Indebtedness, shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (CareTrust REIT, 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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply to the Holders than those following 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 of:
(i) any encumbrance or required restriction in existence on the Issue Date, including pursuant to (a) the Credit Agreement or by any regulatory authority having jurisdiction over other agreement or documents entered into in connection with the Company Credit Agreement, (b) the 2027 Notes, and (c) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings, of any Restricted Subsidiary;
(3) existing of the foregoing agreements or documents; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Company, are not materially more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Issue Date or refinancings thereof;
(ii) any Person encumbrance or restriction pursuant to an agreement relating to an acquisition of property, so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or assets were not created in anticipation of or in connection with the acquisition thereof);
(iii) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person acquired by the Company or any becoming a Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are 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 becoming a Restricted Subsidiary;
(iv) 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 acquisition (except to the extent such Debt or Capital Interests was Incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be Incurred;
(v) any encumbrance or restriction under this Indenture, the Notes and any extensionsNote Guarantees;
(vi) any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, renewals refunding, replacement, refinancing or replacements extension of such encumbrances Debt issued pursuant to an agreement containing any encumbrance or restrictions; providedrestriction referred to in the foregoing clauses (ii) through (v), however, that so long as the encumbrances and restrictions contained in any such extensionsrenewal, renewals refunding, replacement, refinancing or replacements extension agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replaced;the good faith judgment of the Company;
(4vii) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; oror provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(Cviii) arising any encumbrance or agreed restriction by reason of applicable law, rule, regulation, order, license, permit or similar restriction;
(ix) any encumbrance or restriction under the sale of assets 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;
(x) restrictions on cash and other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(xi) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(xii) purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of businessbusiness that impose restrictions on that property so acquired of the nature described in clause (iii) of the first paragraph of this Section 4.8;
(xiii) Liens securing Debt otherwise permitted to be Incurred under this Indenture, not relating including pursuant to Section 4.12, that limit the right of the debtor to dispose of the assets subject to such Liens;
(xiv) any Indebtedness, Non-Recourse Receivable Subsidiary Indebtedness or other contractual requirements of a Receivable Subsidiary that is a Restricted Subsidiary in connection with a Permitted Receivables Facility; provided that such restrictions apply only to such Receivable Subsidiary or the receivables and that do not, individually or related assets described in the aggregate, reduce definition of “Permitted Receivables Facility Assets” which are subject to such Permitted Receivables Facility;
(xv) any other agreement governing Debt entered into after the value of property or assets of the Company or Issue Date that contains encumbrances and restrictions that are either (a) not materially more restrictive with respect to any Restricted Subsidiary than those in any manner material to effect on the Company or any Restricted Subsidiary;
(5) Issue Date with respect to a that Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for agreements in effect on the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; Issue Date or (iib) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings of such type (as determined by the Company); and
Company in good faith, which determination shall be conclusive) and in the case of subclause (Cb) above either (1) the Company determines on the date of the Incurrence of such Indebtedness (in good faith) that any such encumbrance or restriction would will not be expected to materially impair the Company’s ability to make principal or interest payments on the NotesNotes or (2) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a financial maintenance covenant relating to such Debt; and
(xvi) existing under any agreement relating to Debt Incurred by Foreign Subsidiaries permitted to be Incurred pursuant to Section 4.9 and Refinancing Debt in respect thereof; provided that such restrictions are customary for a financing of such type and apply only to the Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries. Nothing contained in this Section 4.05 4.8 shall prevent the Company or any Restricted Subsidiary from: from (1i) creating, incurringIncurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 4.12 or (2ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Company or any of its Restricted SubsidiariesSubsidiaries Incurred in accordance with Section 4.9 and Section 4.12 hereof.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in clause (b) below, the Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on or in respect of any Capital Stock Equity Interests of such a Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary;,
(3iii) make loans or advances to to, or Guarantee any Debt or other obligations of, or make any Investment in, the Company Issuer or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aclause (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date pursuant to this Indenture or any other agreements in effect on the Closing Issue Date, and any amendments, modifications, restatements, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, refinancingsmodification, renewals restatement, extension, renewal, replacement or replacements are refinancing are, taken as a whole, in the good faith judgment of the Issuer, no less favorable in any material respect to the Holders of the Notes than those the encumbrances or restrictions that are then in effect and that are being amended, modified, restated, extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3iii) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company Issuer or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquired, event and any amendments, modifications, restatements, extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, renewals modification, restatement, extension, renewal, replacement or replacements are refinancing are, taken as a whole, in the good faith judgment of the Issuer, as the case may be, no less favorable in any material respect to the Holders of the Notes than those the encumbrances or restrictions that are then in effect and that are being amended, modified, restated, extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in paragraph (a)(iv) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar property Person (in each case relating solely to the respective partnership, limited liability company, joint venture or asset;
similar Person) or (Biii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of 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 Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company Issuer or any Restricted Subsidiary;
(5v) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.13;
(6A) contained in the terms of governing any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
Debt if (Aas determined in good faith by the Issuer) the encumbrance or restriction either: (i) applies only in the event encumbrances or restrictions are ordinary and customary for a financing of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or that type and (ii) is contained the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Issuer or any Guarantor to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous whole, no less favorable in any material respect to the Holders of the Notes than is customary those contained in comparable financings (as determined by the Company)agreements governing the Debt being refinanced; andor
(CB) required pursuant to this Indenture, the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company Notes or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesNote Guarantee.
Appears in 1 contract
Sources: Indenture (GeoPark LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries, including the Issuer, to, create directly or otherwise cause indirectly, create, or permit or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
of the Company to (1a) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by to the Company or any of its other Restricted Subsidiary;
Subsidiaries, (2b) make loans or advances or pay any Indebtedness or other obligations owed to the Company or to any other Restricted Subsidiary;
, or (3) make loans or advances to the Company or any other Restricted Subsidiary; or
(4c) transfer any of its property properties or assets to the Company or to any other Restricted Subsidiary.
, except encumbrances and restrictions existing under (bi) The provisions of Section 4.05(a) shall not restrict this Indenture, any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements Permitted Bank Credit Facility as in effect on the Closing Date, Issue Date and any extensionsamendments, refinancingsmodifications, renewals restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements refinancings 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) existing more restrictive with respect to such dividend and other payment or transfer restrictions than those contained in the Permitted Bank Credit Facility as in effect on the Issue Date and (ii) any Person or the property or assets agreement of such a Person acquired by the Company or any a Restricted SubsidiarySubsidiary of the Company, existing which restrictions existed at the time of acquisition, were not put in place in anticipation of such acquisition 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 property, other than such the Person or any property of the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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 to, 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 Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness 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.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any amendments, modifications, extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, refinancings, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) 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 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, and any amendments, modifications, extensions, refinancings, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 Lien on, on any of the property or assets of the Company or any a 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, reduce the value of the property or assets of the Company or any a Restricted Subsidiary in any manner material to the Company or any such Restricted Subsidiary;
(5) 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, such Restricted Subsidiary; or;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: :
(i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or or
(ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. ;
(7) arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to the Indenture and the Registration Rights Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment; or
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness.
(c) Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: :
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of the Company or any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (PAETEC Holding 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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the Credit Agreements, this Indenture, the Security Documents or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (1) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (2) were not put in place in anticipation of such Person so acquired, event and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in clause (a)(iv) arising or agreed to in the case ordinary course of clause (4) of Section 4.05(a):
business (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(B) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.13;
(6vi) contained in the terms of governing any Indebtedness or Permitted Refinancing Debt, which terms are, taken as a whole, no less favorable in any agreement material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced; or
(vii) required pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIndenture.
Appears in 1 contract
Sources: Indenture (NFC Castings 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 Subsidiaries (that is not a Guarantor) to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
, (32) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (43) sell, lease or transfer any of its property or assets to the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of Section 4.05(a4.08(a) hereof shall not restrict any apply to the following encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing any encumbrance or restriction in existence on the Closing Issue Date, including those required by the Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings thereof, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings, in the good faith judgment of the Company, are no more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Issue Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 replacedrefinancings thereof;
(2) existing under any encumbrance or by reason restriction pursuant to an agreement relating to an acquisition of applicable law property, so long as the encumbrances or required by restrictions in any regulatory authority having jurisdiction over such agreement relate solely to the Company property so acquired (and are not or any Restricted Subsidiarywere not created in anticipation of or in connection with the acquisition thereof, other than in connection with the refinancing of Debt related to the acquired property);
(3) existing any encumbrance or restriction which exists with respect to any a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the property Company on or assets after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person acquired by becoming a Restricted Subsidiary (other than in connection with the Company or any Restricted Subsidiaryrefinancing of Debt at such Person), existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are 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 becoming a Restricted Subsidiary;
(4) 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 (3) of this Section 4.08(b), so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that long as the encumbrances and restrictions contained in any such extensions, renewals or replacements refinancing agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(45) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(6) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(7) any encumbrance or restriction under this Indenture; or, the Notes and the Note Guarantees;
(C8) any encumbrance or restriction on the sale of assets 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) arising restrictions on cash and other deposits or agreed net worth imposed by customers under contracts entered into the ordinary course of business or consistent with past practice;
(10) customary provisions with respect to the disposition or distribution of assets or property in Joint Venture agreements, partnership agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(11) any instrument or agreement governing Debt or Capital Interests 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 Debt or Capital Interests was incurred in connection with or in contemplation of such acquisition other than in connection with the refinancing of existing indebtedness), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be incurred;
(12) purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of business, not relating to any Indebtedness, and business or consistent with past practice that do not, individually or in the aggregate, reduce the value of impose restrictions on that property or assets so acquired of the Company or any Restricted Subsidiary nature described in any manner material to the Company or any Restricted Subsidiaryclause (3) of Section 4.08(a) hereof;
(513) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in existing by reason of any Liens otherwise permitted to be incurred under this Indenture, including the event provisions of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) Section 4.12 hereof that limit the encumbrance or restriction is not materially more disadvantageous to the Holders right of the Notes than is customary in comparable financings (as determined by debtor to dispose of the Company)assets subject to such Liens; and
(C14) any other instrument or agreement governing Debt (1) entered into after the Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or (2) either (a) the Company determines on determines, in good faith, at the date time of the Incurrence of entry into such Indebtedness agreement or instrument that any such encumbrance or restriction would restrictions will not be expected to materially impair adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes. Notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument.
(c) Nothing contained in this Section 4.05 4.08 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in pursuant to Section 4.09 4.12 hereof or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Company or any of its Restricted SubsidiariesSubsidiaries Incurred in accordance with Sections 4.09 and 4.12 hereof.
Appears in 1 contract
Sources: Indenture (CEB Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, 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 Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness 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.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any amendments, modifications, extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, refinancings, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) 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 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, and any amendments, modifications, extensions, refinancings, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such amendments, modifications, extensions, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to not materially more restrictive (as determined by the Holders Company) than those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 Lien on, on any of the property or assets of the Company or any a 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, reduce the value of the property or assets of the Company or any a Restricted Subsidiary in any manner material to the Company or any such Restricted Subsidiary;
(5) 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, such Restricted Subsidiary; or;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: :
(i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or or
(ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. ;
(7) arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to this Indenture and the Registration Rights Agreement or pursuant to this Indenture, the Collateral Documents or the Intercreditor Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment; provided, however, that such restriction or encumbrance applies only to the Person that is the subject of such Investment or Permitted Investment, as applicable;
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness;
(14) customary guarantees by the Company of non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements entered into by the Subsidiary in the ordinary course of business; or
(15) applicable to a Receivables Subsidiary and effected in connection with a Qualified Receivables Financing; provided, however, that such restriction or encumbrance applies only to such Receivables Subsidiary.
(c) Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: :
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of the Company or any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Earthlink Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Borrower or any other Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Company Borrower or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary; or
(4iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a9.4(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date March 17, 2010 or any other agreements in effect on the Closing DateMarch 17, 2010, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Term Loan B Lenders or the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by the Company Borrower or any Restricted Subsidiary, existing at the time of such acquisition and not incurred 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Term Loan B Lenders or the Holders than those encumbrances or restrictions that are then in effect and that are being extended, renewed or replaced;
(4iv) in the case of clause (4iv) of Section 4.05(a9.4(a):
(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 Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this the 2018 Senior Note 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, reduce the value of property or assets of the Company Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or any Restricted Subsidiary;
(5v) 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, such Restricted Subsidiary; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i1) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii2) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders Term Loan B Lenders of the Notes Term Loan B Loans or the Holders than is customary in comparable financings (as determined by the CompanyBorrower); and
(C) the Company Borrower determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the CompanyBorrower’s ability to make principal or interest payments on the Term Loan B Loans or the 2018 Senior Notes. Nothing contained in this Section 4.05 9.4 shall prevent the Company Borrower or any Restricted Subsidiary from: (1) creating, incurringIncurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 9.8 or (2) restricting the sale or other disposition of property or assets of the Company Borrower or any of its Restricted Subsidiaries that secure Indebtedness of the Company Borrower or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Tw Telecom Inc.)
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 Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(2) pay any Indebtedness owed to the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(3) make loans or advances to the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries; or
(4) transfer any of its property or assets to the Company an Issuer or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of Section 4.05(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on under, by reason of or with respect to this Indenture, the Closing Date or Credit Agreement and any other agreements agreement in effect on the Closing Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that in the determination of the Board of Directors of the Parent made in good faith (which determination will be conclusive and binding absent manifest error) the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements are no less favorable in any material respect to the Holders not materially more restrictive, taken as a whole, than those encumbrances contained in the Credit Agreement or restrictions that are then such other agreements as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(2) existing under or under, by reason of applicable law or required by with respect to any regulatory authority having jurisdiction over other Indebtedness of the Company Restricted Subsidiaries permitted under this Indenture; provided, however, that the Board of Directors of Parent have determined in good faith (which determination will be conclusive and binding absent manifest error) that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair in any Restricted Subsidiarymaterial respect the Issuers’ and the Guarantors’ ability to make payments on the Notes when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company an Issuer or any of its Restricted SubsidiarySubsidiaries, existing at the time of such acquisition and not incurred 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, acquired and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are no less favorable entered into in any material the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to the Holders than those encumbrances such Person or restrictions that are then its property or assets as in effect on the date of such acquisition as determined by such Person in good faith (which determination will be conclusive and that are being extended, renewed or replacedbinding absent manifest error);
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) existing under, by reason of or with respect to, this Indenture, the Notes or the Guaranties;
(6) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(7) Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(8) in the case of clause (4) of Section 4.05(a4.13(a)(4):
(Ai) 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;,
(Bii) 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 an Issuer or any of its Restricted Subsidiary not otherwise prohibited by this Indenture; ,
(iii) existing under, by reason of or with respect to (1) purchase money obligations for property acquired in the ordinary course of business or (2) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(Civ) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent or any of its Restricted Subsidiary Subsidiaries in any manner material to the Company or any Parent and its Restricted SubsidiarySubsidiaries taken as a whole;
(59) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Subsidiary Guarantor 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 Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary; and
(10) 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, such Restricted Subsidiary; orSubsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition.
(6c) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.13 shall prevent the Company Parent or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) from restricting the sale or other disposition of property or assets of the Company Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuers or any of its their Restricted Subsidiaries. For purposes of determining compliance with this Section 4.13, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Guarantor will not, and shall will not permit any Restricted Subsidiary (other than the Company) to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1other than the Company) to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Guarantor or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company Guarantor or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company Guarantor or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company Guarantor or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Acquisition Date in the Senior Secured Credit Facilities, this Indenture, the Senior Discount Debenture Indenture or any other agreements (including the Concession Title) in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) existing with respect to any Person or the property or assets of such Person acquired by the Company Guarantor 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 than such Person or the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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 Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce detract from the value of property or assets of the Company Guarantor or any Restricted Subsidiary in any manner material to the Company Guarantor or any Restricted Subsidiary;
; (5v) 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, such Restricted Subsidiary; or
or (6vi) contained in for the terms benefit of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event holder of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the NotesLien permitted under Section 4.09. Nothing contained in this Section 4.05 shall prevent the Company Guarantor or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company Guarantor or any of its Restricted Subsidiaries that secure Indebtedness of the Company Guarantor or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall QCP will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of QCP to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company QCP or any other Restricted SubsidiarySubsidiary of QCP;
(2) pay any Indebtedness owed to the Company QCP or any other Restricted SubsidiarySubsidiary of QCP;
(3) make loans or advances to the Company QCP or any other Restricted SubsidiarySubsidiary of QCP; or
(4) transfer any of its property or assets to the Company QCP or any other Restricted SubsidiarySubsidiary of QCP.
(b) The provisions of Section 4.05(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on under, by reason of or with respect to, this Indenture, the Closing Date or Notes, the Notes Guarantees, the Credit Agreement, the Unsecured Credit Facility, any Existing Indebtedness, any other agreements agreement in effect on the Closing Spin-Off Completion Date as in effect on the Spin-Off Completion Date, and any Transaction Agreement as in effect on its date, and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements are no less favorable in any material not materially more restrictive, taken as a whole, with respect to the Holders such dividend or other payment restrictions than those encumbrances contained in those agreements on the Spin-Off Completion Date or restrictions that are then in effect and that are being extendedsuch other date, refinanced, renewed or replacedas applicable;
(2) existing under or under, by reason of applicable law or required by with respect to any regulatory authority having jurisdiction over Credit Facility or other Indebtedness permitted under this Indenture (and not included in clause (1) above); provided, however, that the Company encumbrances and restrictions contained in the agreement or any Restricted Subsidiaryagreements governing such Credit Facility or other Indebtedness (x) are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement (with respect to other credit agreements or Indebtedness other than under an indenture) or this Indenture (with respect to other indentures), in each case, as in effect on the Spin-Off Completion Date or Issue Date, respectively, or (y) apply only during the occurrence of an event of default with respect to such Credit Facility or other Indebtedness;
(3) existing under, by reason of or with respect to (i) applicable law, rule, regulation, decree or administrative or court order or (ii) Permitted Liens;
(4) existing with respect to any Person (including Indebtedness or Capital Stock of such Person) or the property or assets of such Person acquired by the Company QCP or any Restricted SubsidiarySubsidiary of QCP (or any such Person that otherwise becomes a Restricted Subsidiary of QCP including by designation or by merger or consolidation or sale of all or substantially all of its assets into or to QCP or another Restricted Subsidiary of QCP), existing at the time of such acquisition (or such Person so becoming a Restricted Subsidiary of QCP) 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, acquired (or such Restricted Subsidiary) and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are no less favorable entered into in any material the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to the Holders than those encumbrances such Person or restrictions that are then its property or assets as in effect and that are being extended, renewed on the date of such acquisition (or replacedsuch Person so becoming a Restricted Subsidiary of QCP);
(45) existing under, by reason of or with respect to provisions in joint venture, partnership, operating or similar agreements entered into in connection with a Permitted Business;
(6) in the case of clause (4) the last bullet in the first paragraph of Section 4.05(a):this covenant:
(A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to, or that is, a lease, license, conveyance or contract or similar property or asset;,
(B) other encumbrances or restrictions contained in or with respect to the Master Lease and the properties subject thereto,
(C) 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 QCP or any Restricted Subsidiary of QCP not otherwise prohibited by this Indenture; ,
(D) existing under, by reason of or with respect to (i) purchase money obligations for property acquired in the ordinary course of business or (ii) capital leases or operating leases, including purchase money Indebtedness, Capitalized Lease Obligations and other Indebtedness permitted to be Incurred under paragraph (4)(Q) of Permitted Indebtedness, that impose encumbrances or restrictions on the property so acquired or covered thereby, or (iii) a contract with respect to an Asset Sale, Sale and Leaseback Transaction, stock sale agreement or other transfer, conveyance or disposition permitted under this Indenture, which encumbrances or restrictions are applicable only to the property, assets or Capital Stock that are the subject of such contracts, or
(CE) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company QCP or any Restricted Subsidiary of QCP in any manner material to the Company or any QCP and its Restricted SubsidiarySubsidiaries taken as a whole;
(57) 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, such Restricted Subsidiary; orSubsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(68) existing under, by reason of or with respect to Indebtedness permitted to be Incurred pursuant to Section 4.08(4)(N) or other Permitted Refinancing Indebtedness permitted to be Incurred pursuant to Section 4.08; provided, that the encumbrances and restrictions contained in the agreements governing such Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 Companygood faith judgment of QCP); , and
(C) the Company QCP, in its good faith, determines on the date of the Incurrence of that such Indebtedness that any such an encumbrance or restriction would will not be expected to materially impair affect the Company’s Issuers’ ability to make principal or interest payments on the Notes. ;
(10) any encumbrance or restriction pursuant to Hedging Obligations or under Permitted Non-Recourse Guarantees;
(11) restrictions on deposits made to secure letters of credit or surety or other bonds issued in connection therewith or deposits 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 to secure letters of credit or surety or other bonds relating thereto);
(12) restrictions on the ability of any Restricted Subsidiary to make Investments in or transfer assets to any Person that is not a Subsidiary of such Restricted Subsidiary or that is not a direct or indirect parent of QCP of such Restricted Subsidiary;
(13) any encumbrances or restrictions of the type referred imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or other refinancings of those agreements, instruments or obligations referred to in clauses (1) through (12) above and clauses (14) through (18) below, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or other refinancings are no more restrictive, taken as a whole, with respect to such encumbrances or restrictions than those contained in those agreements prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, restructuring, replacement or other refinancing;
(14) [Reserved];
(15) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(16) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(17) restrictions on cash or other deposits (i) imposed by persons under contracts entered into in the ordinary course of business or for whose benefit such cash or deposit exists, (ii) or net worth imposed by customers under contracts entered into in the ordinary course of business or (iii) that arise in connection with Permitted Investments; and
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase sale, or other agreement entered into in the ordinary course of business; provided such agreement restricts the encumbrance of solely the property or assets that are the subject of such agreement, the payment rights thereunder or the proceeds thereof.
(c) Nothing contained in this Section 4.05 4.13 shall prevent the Company QCP or any Restricted Subsidiary from: of QCP from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2a) restricting the sale or other disposition of property or assets of the Company QCP or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuers or any of its their Restricted Subsidiaries.Subsidiaries permitted by this Indenture or (b) creating, Incurring, assuming or suffering to exist any Liens otherwise permitted by this Indenture. For purposes of determining compliance with this Section
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a1) The Except as provided in paragraph (b) below, the Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3b) make loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(4c) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b2) The provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
Paragraph (1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect above will not apply 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 of:
(a) applicable law or required by any regulatory authority having jurisdiction over the Company applicable rule, regulation or any Restricted Subsidiaryorder;
(3b) existing the Indenture and the Supplemental Indenture;
(c) the Bank Credit Facilities as 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 materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(d) customary non-assignment provisions of any Person license, sub-license or the property other contract and customary provisions restricting assignment or assets subletting in any lease governing a leasehold interest of such Person acquired by the Company or any Restricted Subsidiary, existing at or any customary restriction on the time ability of such acquisition 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 and the Supplemental Indenture;
(e) any instrument governing Acquired Indebtedness not incurred Incurred in connection with, or in anticipation or contemplation thereofof, the relevant acquisition, merger or consolidation, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 Lien on, any property properties 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 Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted SubsidiaryPerson so acquired;
(5f) restrictions with respect to a Restricted Subsidiary and of the Company imposed pursuant to an a binding agreement that which 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; orprovided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(6g) contained customary restrictions imposed on the transfer of copyrighted or patented materials;
(h) Indebtedness of a Foreign Restricted Subsidiary Incurred under Section 3.1(2) (c) of or of a Joint Venture or TMD Entity Incurred under Section 3.1(2)(c)(iv), in each case to the extent that any such encumbrances or restrictions are customary for Indebtedness of such type and, in the terms judgment of any Indebtedness the Company, necessary to obtain appropriate financing for such Foreign Restricted Subsidiary or any agreement pursuant to which such Indebtedness was issued if:Domestic Restricted Subsidiary;
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant customary restrictions contained in such Indebtedness joint venture agreements, shareholder agreements or agreement; or (ii) is contained constituent documents related to Investments in a Credit AgreementPersons that are not Wholly Owned Subsidiaries of the Company;
(Bj) any agreement relating to Indebtedness outstanding on the encumbrance Issue Date as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or restriction refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more disadvantageous restrictive with respect to such encumbrances or restrictions than those in existence on the Holders Issue Date;
(k) purchase money obligations for property and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the Notes than is customary nature of described in comparable financings paragraph (as determined 1)(c) above;
(l) any Indebtedness secured by a Lien that was otherwise permitted to be incurred under the Company)provisions of Section 4.06 and 4.07 of the Indenture that limits the right of the debtor to dispose of the assets subject to such Liens;
(m) restrictions on cash or other deposits or net worth requirements imposed by customers under contracts or arrangements entered into in the ordinary course of business;
(n) Indebtedness Incurred under Section 3.1(2)(j) or other restrictions or other contractual requirements of a Securitization Subsidiary in connection with a Permitted Receivables Financing; and
(Co) an agreement governing Indebtedness Incurred to Refinance the Company determines on the date Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (b), (c), (e) or (g) of the Incurrence of this paragraph (2); provided, that such Indebtedness that any Refinancing agreement is not materially more restrictive with respect to such encumbrance encumbrances or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing restrictions than those contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: agreement referred to in such clause (1b), (c), (e) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesj).
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 todirectly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any of its Restricted Subsidiary Subsidiaries to:
(1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other Restricted Subsidiary;
(2) interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any other of its Restricted SubsidiarySubsidiaries (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);
(3ii) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any Restricted Subsidiary; Subsidiary shall not be deemed a restriction on the ability to make loans or advances): or
(4iii) sell, lease or transfer any of its property properties or assets to the Company Issuer or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of restrictions set forth in Section 4.05(a4.09(a) shall not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date or any other agreements governing Indebtedness as in effect on the Closing DateIssue Date (including, without limitation, the Indebtedness under the Revolving Credit Facility) and any extensionsamendments, refinancingsmodifications, renewals restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive (as determined in good faith by the Board of such agreements; providedDirectors or Senior Management), howevertaken as a whole, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material with respect to the Holders such dividend and other payment restrictions than those encumbrances or restrictions that are then contained in those agreements as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(2) existing under this Indenture, the Securities, the Guarantees herein and the Collateral Documents, or by reason other indentures or agreements governing Indebtedness of applicable law or required by any regulatory authority having jurisdiction over the Company Issuer or any Restricted SubsidiarySubsidiary ranking equally with the Securities; provided that such indentures or agreements are not materially more restrictive, taken as a whole, than the encumbrances or restrictions imposed by this Indenture;
(3) existing applicable law, rule, regulation or order or the terms of any license, authorization, concession or permit provided by any governmental authority;
(4) any instrument governing Indebtedness or Equity Interests or any agreement of a Person (including its Subsidiaries) acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was Incurred, or such agreement was entered into, in connection with respect or in contemplation 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, or the property or assets of such Person the Person, so acquired by the Company or any Restricted Subsidiary(including its Subsidiaries); provided that, 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4) in the case of clause (4) Indebtedness, such Indebtedness was permitted by the terms of Section 4.05(a):
(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 assetthis Indenture to be Incurred;
(B5) any agreement existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date and any amendments, modifications, restatements, renewals, supplements or replacements thereof; provided that such amendments, modifications, restatements, renewals, supplements or replacements are not materially restrictive (as determined in good faith by virtue the Board of any transfer ofDirectors or Senior Management), agreement to transfertaken as a whole, option or right with respect toto such dividend and other payment restrictions than those contained in those agreements as in effect on the Issue Date;
(6) customary non-assignment provisions in leases, or Lien onlicenses, any franchise agreements, conveyances and other commercial agreements entered into in the ordinary course of business;
(7) purchase money obligations for property or assets acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the Company nature described in Section 4.09(a)(iii);
(8) any agreement for the sale or other disposition of assets or Capital Stock of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending such sale or other disposition;
(9) Liens securing Indebtedness otherwise permitted to be Incurred pursuant to this Indenture that limit the right of the Issuer or any of its Restricted Subsidiary not otherwise prohibited by this Indenture; orSubsidiaries to dispose of the assets subject to such Lien;
(C10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, stockholder agreements, asset sale agreements, stock sale agreements and other similar agreements, which encumbrance or restriction is applicable only to the assets that are the subject of such agreements;
(11) 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, reduce not detract from the value of the property or assets of the Company or any Issuer and its Restricted Subsidiary Subsidiaries in any manner material to the Company Issuer and its Restricted Subsidiaries;
(12) restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;
(13) restrictions that are not materially more restrictive, taken as a whole, than customary provisions in comparable financings (as determined in good faith by the Board of Directors) and that the management of the Issuer determines in good faith will not materially impair the Issuer’s ability to make scheduled payments as required under the Securities;
(14) agreements with respect to Indebtedness of the Issuer or any Restricted Subsidiary;
(5) with respect Subsidiary permitted to a Restricted Subsidiary and imposed be incurred subsequent to the Issue Date pursuant to an agreement Section 4.05 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that has been entered into for the sale such encumbrances or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is restrictions are not materially more disadvantageous less favorable, taken as a whole, to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the CompanyBoard of Directors or Senior Management); and
(C15) any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the Company determines on agreements containing the date of encumbrances or restrictions in the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: foregoing clauses (1) creatingthrough (14), incurringor in this clause (15); provided that the terms and conditions of any such encumbrances or restrictions are not materially less favorable, assuming taken as a whole, to the Holders than those under or suffering pursuant to exist any Liens otherwise permitted the agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or replaced (as determined in Section 4.09 good faith by the Board of Directors or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSenior Management).
Appears in 1 contract
Sources: Indenture (SFX Entertainment, INC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1A) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness or other obligations owed to the Company Issuer or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Vicap Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementsany of the foregoing; provided, however, 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 holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
; (2ii) arising in connection with the Incurrence of Indebtedness after the Vicap Closing 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 Restricted Subsidiary to make the payments, distributions, loans, advances or transfers referred to above than necessary and customarily accepted; (iii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iv) existing with respect to any Person or the property or assets of such Person acquired by the Company Issuer or any Restricted Subsidiary, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, which encumbrances or restrictions (A) 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 acquiredacquired and (B) were not put in place in anticipation of such acquisition, and any extensions, renewals or replacements Refinancings of such encumbrances or restrictionsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensions, renewals or replacements Refinancings are no less favorable in any material respect to the Holders holders than those encumbrances or restrictions that are then in effect and that are being extended, renewed or replaced;
Refinanced; (4v) in the case of clause (4iv) of Section 4.05(a):
the preceding paragraph, arising or agreed to in the ordinary course of business (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 Lien on, any property or assets of the Company Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
the Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any IndebtednessIndebtedness and, and in each of cases (A), (B) or (C), that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Issuer or any Restricted Subsidiary in any manner material to the Company or any Issuer and its Restricted Subsidiary;
Subsidiaries, taken as a whole; (5vi) with respect to a Restricted Subsidiary or certain property or assets of 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, such Restricted SubsidiarySubsidiary or such property or assets, as the case may be; or
(6vii) contained restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreementbusiness; or (iiviii) is contained customary provisions in a Credit Agreement;
(B) joint venture agreements and other similar agreements entered into in the encumbrance or restriction is not materially more disadvantageous to the Holders ordinary course of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notesbusiness. Nothing contained in this Section 4.05 the preceding paragraph shall prevent the Company Issuer or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by the "Limitation on Liens" covenant in Section 4.09 3.13 or (2) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted 50 Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing DateDate (and upon consummation of the JSC Transaction, existing on the JSC Transaction Date in the JSC Credit Agreement or any other agreements in effect on the JSC Transaction Date under which JSC or any of its Subsidiaries is a party or any of their assets are bound), and any extensions, refinancings, renewals or replacements of such agreementsany of the foregoing; provided, however, PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no not materially 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of Section 4.05(a):
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) 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
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, reduce detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any and its Restricted SubsidiarySubsidiaries taken as a whole;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance customary provisions with respect to a financial covenant contained the disposition or distribution of assets or property in such Indebtedness or agreement; or (ii) is contained joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in a Credit Agreementthe ordinary course of business;
(Bvii) any agreement or instrument governing Indebtedness (whether or not outstanding) of any Foreign Subsidiary of the encumbrance Company permitted to be incurred pursuant to clause (x) under SECTION 4.03(a) so long as (1) such agreement or restriction instrument is not materially applicable to any Person or the property or assets of any Person other than such Foreign Subsidiary or the property or assets of such Foreign Subsidiary and its Foreign Subsidiaries and (2) not more disadvantageous to than 20% of such Foreign Subsidiary's assets are located in the Holders of the Notes than is customary in comparable financings (as determined by the Company)United States; and
(Cviii) the Company determines on the date any restriction in any agreement or instrument of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notesa Receivables Subsidiary governing a Qualified Securitization Transaction. Nothing contained in this Section SECTION 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section by SECTION 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Stone Container Finance CO of Canada II)
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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply to the Holders than those following encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(a) any encumbrance or restriction in existence on the Issue Date, including those under the Credit Agreement, the Existing Receivables Facility and the Leasing Facility and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of applicable law the Company, are no more restrictive in any material respect, taken as a whole, with respect to such dividend or required by any regulatory authority having jurisdiction over other payment restrictions, than those contained in these agreements on the Company Issue Date or any Restricted Subsidiaryrefinancings thereof;
(3b) existing with respect any encumbrance or restriction pursuant to any Person or an agreement relating to an acquisition of property, so long as 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect agreement relate solely to the Holders than those encumbrances property so acquired (and are not or restrictions that are then were not created in effect and that are being extended, renewed anticipation of or replacedin connection with the acquisition thereof);
(4c) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, assignment any encumbrance 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 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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) restriction which exists with respect to a Person that becomes a Restricted Subsidiary and imposed pursuant to an agreement that has been entered or merges with or 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
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company on or any of its Restricted Subsidiaries that secure Indebtedness of after the Company or any of its Restricted Subsidiaries.Issue Date, which is in existence at the time such Person becomes
Appears in 1 contract
Sources: Indenture (Triumph Group Inc /)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in the New Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any amendments, extensions, refinancings, renewals or replacements of such agreements; provided, however, PROVIDED that the encumbrances and restrictions in any such amendments, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or
(6vi) contained in the terms of any Indebtedness of a Restricted Subsidiary, or any agreement pursuant to which such Indebtedness was issued if:
(A) issued, if the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) , if 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) and if the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Date in the Credit Agreement, this Indenture, the 9% Indenture or any other agreements in effect on the Closing Date, and any modifications, extensions, refinancings, substitutions, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such modifications, extensions, refinancings, substitutions, 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 modified, substituted, extended, refinanced, renewed or replaced;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
; (5v) 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, such Restricted Subsidiary; or
(6vi) agreements with principal customers restricting the transfer of assets (or entities owning assets) substantially dedicated to products sold to such customers; (vii) with respect to any Restricted Subsidiary that is intended to be a special purpose financing entity and into which the Company and the other Restricted Subsidiaries do not make any material Investment of assets other than accounts receivable and, to the extent required by the financing agreements of such Restricted Subsidiary, cash; (viii) with respect to 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 may only apply to such Securitization Entity; or (ix) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(in each case by a Restricted Subsidiary in compliance with Section 4.03) if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders holders of the Notes than is customary in comparable financings (as determined by the Company); and
, (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair the Company’s affect its ability to make principal or interest payments on the Notes, (D) such encumbrance or restriction expressly states that such Restricted Subsidiary shall be entitled to take the actions referred to in clauses (i) through (iv) of the first paragraph of this Section 4.05 in an amount not to exceed 50% of the consolidated net income of such Restricted Subsidiary (after making adjustments thereto in the nature of the adjustments referred to in the definition of “Adjusted Consolidated Net Income”) and (E) the Investments made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Silgan Holdings Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) 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, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) 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 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, acquired and any extensions, refinancings, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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 Section 4.05(a):4.06:
(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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; 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, reduce 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) 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, such Restricted Subsidiary;
(6) existing under or by reason of any Indebtedness or other contractual requirement in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to the Securitization Entity or other Restricted Subsidiary that is a party to such Qualified Securitization Transaction; or
(67) contained in Indebtedness permitted to be Incurred subsequent to the terms of any Indebtedness or any agreement Closing Date pursuant to which Section 4.03 herein; provided that any such Indebtedness was issued if:
(A) the encumbrance encumbrances or restriction either: (i) applies only in the event of a payment default restrictions are ordinary or non-compliance customary with respect to a the type of Indebtedness Incurred (under the relevant circumstances) and that the Board of Directors or any financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders officer of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would shall not be expected to materially impair adversely affect the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.06 shall prevent the Company or any Restricted Subsidiary from: :
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or herein or
(2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Ingram Micro 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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary. However, the preceding restrictions will not apply to the following encumbrances or restrictions (including those existing under or by reason of):
(a) any encumbrance or restriction in existence on the Issue Date, including those required by the Credit Agreement or by any other agreements or documents entered into in connection with the Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings, of any of the agreements or documents providing for such existing encumbrances and restrictions, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Company, are no more restrictive in any material respect, taken as a whole, with respect to such encumbrances and restrictions than those contained in these agreements and documents on the Issue Date.
(b) The provisions of Section 4.05(a) shall not restrict any encumbrances encumbrance or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, restriction existing at the time of such the acquisition and not incurred in contemplation thereofof property, which so long as the encumbrances or restrictions relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(c) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary or 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 Person;
(d) 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 (a) through (c), so acquired, and any extensions, renewals or replacements of long as such encumbrances or restrictions; provided, however, that the encumbrances and restrictions contained in any such extensionsagreement are not materially more restrictive, renewals or replacements are no less favorable in any material taken as a whole, with respect to the Holders such encumbrances and restrictions than those encumbrances contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(4e) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or assignment or transfer of any property or asset that is a lease, licensesublease, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(C) arising or agreed to provisions in agreements that restrict the ordinary course assignment of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company such agreement or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiaryrights thereunder;
(5f) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event by reason of a payment default applicable law, rule, regulation, order, approval, license, permit or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreementsimilar restriction;
(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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Oshkosh 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 (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by (or with respect to any other interest or participation in, or measured by, its profits) to the Company or any other Restricted SubsidiarySubsidiary (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 Indebtedness liabilities owed to the Company or any other 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 SubsidiarySubsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(4) sell, lease or transfer any of its property properties or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.10(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under, by reason of or with respect to:
(1) existing on the Closing Date Existing Indebtedness or any other agreements in effect on the Closing Date, Issue Date and any amendments, modifications, restatements, renewals, extensions, refinancingssupplements, renewals refundings, replacements or replacements of such agreementsrefinancings thereof; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings, renewals taken as a whole, are not, as determined by the Company or replacements are no less favorable a direct or indirect parent of the Company in any material respect to the Holders good faith, materially more restrictive than those encumbrances contained in the Existing Indebtedness or restrictions that are then such other agreements, as the case may be, as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(2) existing under this Indenture, the Notes, the Note Guarantees, the Security Documents, the Intercreditor Agreement and other documents relating to this Indenture, the Notes, the Note Guarantees, the Security Documents or the Intercreditor Agreement;
(3) applicable law, rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by reason of applicable law or required by any regulatory authority having jurisdiction over merged or consolidated with or into the Company or any Restricted Subsidiary;
Subsidiary that was in existence at the time of such acquisition (3) existing with respect but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Company or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not incurred in contemplation thereof, which so acquired;
(5) customary encumbrances or restrictions are not contained in contracts or agreements for the sale of assets applicable to any Person such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the property or assets of any Person other than such Person or the property Capital Stock or assets of such Person so acquired, and any extensions, renewals Restricted Subsidiary;
(6) restrictions on cash or replacements other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Holders than those business;
(7) encumbrances or restrictions that are then in effect and that are being extended, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce (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 SubsidiarySubsidiary 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 or a direct or indirect parent of the Company in good faith);
(5) 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 a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into 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 Restricted Subsidiary; orsale or other disposition;
(69) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the terms ordinary course of any 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 entered into in the ordinary course of business 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 Company’s ability to make payments of principal or interest on the Notes;
(11) Secured Indebtedness or 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 pursuant or instrument relating to which such Indebtedness was issued if:
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 encumbrance encumbrances or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is restrictions are not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company or a direct or indirect parent of the Company); and
) and (CB) either (x) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair adversely affect the Company’s ability to make principal or and interest payments on the Notes. Nothing contained Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a default in this Section 4.05 shall prevent 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 with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(14) 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 restriction of 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 from: 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 or a direct or indirect parent of the Company in good faith);
(17) 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 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 4.03; and
(19) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) creatingthrough (18) above; provided that such amendments, incurringmodifications, assuming restatements, renewals, increases, supplements, refundings, replacements or suffering to exist any Liens otherwise permitted refinancings are, in Section 4.09 or (2) restricting the sale or other disposition of property or assets good faith judgment of the Company or any of its Restricted Subsidiaries that secure Indebtedness a direct or indirect parent of the Company Company, not materially more restrictive as a whole with respect to such encumbrances or any of its Restricted Subsidiariesrestrictions than 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 Except as provided in paragraph (b), the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt 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.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Issue Date, and any amendments, modifications, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, refinancingsmodification, renewals extension, renewal, replacement or replacements are refinancing are, in the good faith judgment of the Company, no less favorable more restrictive in any material respect with respect to such encumbrances and other restrictions taken as a whole than the Holders than those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictionsany of the foregoing; provided, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, in the good faith judgment of the Company, no less favorable more restrictive in any material respect with respect to such encumbrances and other restrictions taken as a whole than the Holders than those encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) of the type described in clause (a)(4) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(Bii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right (including any asset sale or stock sale agreement) 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.10;
(6) contained in the terms of any Indebtedness or any agreement required pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreementthis Indenture;
(B7) 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) 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) existing pursuant to any instrument governing any Debt 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 is not materially more disadvantageous applicable to any Person, or the Holders properties or assets of any Person, other than the Person who became a Restricted Subsidiary, or the property or assets of the Notes than is Person 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) existing pursuant to provisions in comparable financings 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; provided that (i) such provisions are customary for instruments of such type (as determined in good faith by the Company); and
) and (Cii) the Company determines on in good faith that such restrictions will not materially adversely impact the date ability of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability Company to make required principal or and interest payments on the Notes. Nothing ;
(12) existing pursuant to purchase money obligations for property acquired in the ordinary course of business and Capital Lease obligations that impose restrictions of the nature discussed in Section 4.07(a)(4) on the property so acquired;
(13) contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creatingtrading, incurringnetting, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale operating, construction, service, supply, purchase or other disposition of property or assets of agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of its the Company or such Restricted SubsidiariesSubsidiary or the assets or property of any other Restricted Subsidiary; and
(14) of the type referred to in paragraph (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 (1) through (13) 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 encumbrances 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 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 Company or a Restricted Subsidiary of the Company to other Debt 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 1 contract
Sources: Indenture (Ruby Tuesday Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary other than a New Business Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) 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, however, provided that the amendments, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Amazon Com 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
restrictions that: (1i) existing on exist in the Closing Date Bank Credit Agreement, this Indenture, the Subsidiary Guarantees or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
; (2ii) existing exist under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) existing exist 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of Section 4.05(a):
), (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 exist 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
Indenture or (C) arising arise or are agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.-41- 45
Appears in 1 contract
Sources: Indenture (Agco Corp /De)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
or 55 62 (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.07(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the New Credit Facility, this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of Section 4.05(a):
4.07(a), (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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or, pending such sale or disposition;
(6vi) contained existing under purchase money obligations for property acquired in the terms ordinary course of any Indebtedness business that impose restrictions of the nature discussed in clause (iv) above on the property so acquired;
(vii) existing under applicable law or any agreement pursuant to which such Indebtedness was issued if:
applicable rule, regulation or order; 56 63 (Aviii) contracts for the encumbrance or restriction either: (i) applies only in the event sale of a payment default or non-compliance assets, including, without limitation, customary restrictions with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous Subsidiary pursuant to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness an agreement that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting has been entered into for the sale or other disposition of property all or substantially all of the Capital Stock or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.such Subsidiary;
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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) 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, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrances encumbrance or restrictionsrestriction; provided, however, 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;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness was issued if:
is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair the Company’s affect its ability to make principal or interest payments on the Notes, (D) if the aggregate principal amount of such Indebtedness exceeds the greater of (1) $5 million and (2) 5% of Consolidated EBITDA for the Four Quarter Period, the documents pursuant to which all such indebtedness in excess of such amount is outstanding expressly state that such Restricted Subsidiary shall be entitled to take the actions referred to in clauses (i) through (iv) of the first paragraph of this Section 4.05 in an amount not to exceed 50% of the consolidated net income of such Restricted Subsidiary (after making adjustments thereto in the nature of the adjustments referred to in the definition of "Adjusted Consolidated Net Income") and (E) the Investments made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basis. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Econophone 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 Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by to the Company or any of its Restricted Subsidiaries, or with respect to any other Restricted Subsidiary;
(2) interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any other of its Restricted SubsidiarySubsidiaries;
(3ii) make loans or advances to the Company or any other of its Restricted SubsidiarySubsidiaries; or
(4iii) transfer any of its property properties or assets to the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of Section 4.05(a) preceding restrictions shall not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1i) existing on the Closing Date or any other agreements governing Existing Indebtedness as in effect on the Closing Date, Date and any amendments, modifications, restatements, renewals, increases, extensions, refinancingssupplements, renewals refundings, replacements or replacements refinancings of any of the foregoing, provided that the amendments, modifications, restatements, renewals, increases, extensions, supplements, refundings, replacement or refinancings of such agreements; providedinstrument are not materially more restrictive, howevertaken as a whole, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material with respect to the Holders such dividend and other payment restrictions than those encumbrances or restrictions that are then contained in effect and that are being extended, refinanced, renewed or replacedsuch agreement on the Closing Date;
(2ii) existing under or by reason of Credit Facilities;
(iii) this Indenture, the Securities and the Guarantees;
(iv) applicable law or required by any regulatory authority having jurisdiction over the Company applicable rule or any Restricted Subsidiaryregulation;
(3v) existing with respect to any Person instrument governing Indebtedness or the property or assets Capital Stock of such a Person acquired by the Company or any of its Restricted Subsidiary, existing Subsidiaries as in effect at the time of such acquisition and not (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation thereofof such acquisition), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of any Person other than such Person or the property or assets of such Person Person, so acquired, and any extensionsprovided that, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4) in the case of clause (4) Indebtedness, such Indebtedness was permitted by the terms of Section 4.05(a):this Indenture to be incurred;
(Avi) customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business or that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract license or similar property or assetcontract;
(Bvii) existing restrictions encumbering property at the time such property was acquired by virtue the Company or any of its Restricted Subsidiaries, so long as such encumbrance or restriction relates solely to the property so acquired;
(viii) any agreement for the sale or other disposition of a Restricted Subsidiary or the assets of a Restricted Subsidiary pending the sale or other disposition of such assets or Restricted Subsidiary;
(ix) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(x) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Sections 4.13 and 4.03 that limit the right of the debtor to dispose of or transfer the assets subject to such Liens;
(xi) any transfer of, agreement to transfer, or 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;
(Cxii) arising provisions with respect to the disposition or agreed to distribution of assets or property and other customary provisions in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually ;
(xiii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the aggregate, reduce ordinary course of business;
(xiv) Indebtedness permitted to be incurred pursuant to Section 4.03(b)(iv) for property acquired in the value ordinary course of business that only imposes encumbrances or restrictions on the property or assets of so acquired;
(xv) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiaryordinary course of business;
(5xvi) Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with respect a Qualified Receivables Transaction, provided that such restrictions apply only to a Restricted Subsidiary and imposed such Receivables Subsidiary; and
(xvii) agreements governing Indebtedness permitted to be incurred pursuant to an agreement Section 4.03, provided 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, provisions relating to such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in Indebtedness, taken as a Credit Agreement;
(B) the encumbrance or restriction is whole, are not materially more disadvantageous restrictive to the Holders of the Notes than is customary in comparable financings (Company, as determined by the Company); and
(C) the Company determines on the date Board of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets Directors of the Company in their reasonable and good faith judgment, than the provisions contained in the Credit Agreement or any of its Restricted Subsidiaries that secure Indebtedness of this Indenture as in effect on the Company or any of its Restricted SubsidiariesClosing Date.
Appears in 1 contract
Sources: Indenture (Sea Coast Foods, 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any modifications, extensions, refinancings, renewals renewals, substitutions or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such modifications, extensions, refinancings, renewals renewals, substitutions 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 modified, extended, refinanced, renewed renewed, substituted or replaced;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
4.11, (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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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;
; (5v) 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, such Restricted Subsidiary; or
or (6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.11 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Foodmaker Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 4.09(b), the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.09(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in agreements governing the U.S. Credit Facility, the Iceland Credit Facility, this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person Person, or with respect to any property or assets, at the time the Person, property or assets of such Person are acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (y) were not put in place in anticipation of such Person so acquired, event; and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances any of the foregoing, or restrictions; providedof any subsequent extension, howeverrenewal, that replacement or refinancing thereof, provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) in the case of clause (4iv) of the type described in Section 4.05(a):4.09(a)(iv) arising or agreed to
(A) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;,
(B) existing with respect to any assets comprising a Permitted Business in which the Company or any Restricted Subsidiary has ownership of an undivided interest, pursuant to the agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restrictions are consistent with the Company’s past practice, or
(C) by virtue of any transfer ofPermitted Lien on, or agreement to transfer, option or similar 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, of or property and assets ofof the Restricted Subsidiary that is permitted by this Indenture;
(vi) on the ability of Restricted Subsidiaries to consummate transactions of the type described in Sections 4.09(a)(i), (ii), (iii) or (iv) provided for by any credit agreement or security document relating to Debt permitted to be incurred under this Indenture; provided that such Restricted Subsidiaryrestrictions are not more restrictive than the restrictions contained in this Indenture or the U.S. Credit Facility;
(vii) required pursuant to Section 4.06(b)(iii);
(viii) imposed on any Joint Venture pursuant to customary limitations contained in the constituent documents and agreements governing such Joint Venture; or
(6ix) contained in the terms of existing under any Indebtedness credit agreement or any agreement security document relating to Debt incurred pursuant to which Sections 4.06(b)(ii), (b)(xi) or (b)(xii) or Permitted Refinancing Debt in respect thereof; provided that (a) such Indebtedness was issued if:
restrictions apply only to the Persons Incurring such Debt (Aincluding Guarantees thereof) the encumbrance or restriction either: and their Subsidiaries, (ib) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction Debt is not materially more disadvantageous to Guaranteed by the Holders Company (except as permitted thereby) and (c) as determined in good faith by the Board of Directors of the Notes than is customary in comparable financings (as determined by Company, such encumbrances and restrictions would not, at the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not time agreed to, be expected to materially impair adversely affect the Company’s ability of the Company to make principal or interest payments on the Notes. Nothing contained in .
(c) For purposes of determining compliance with this Section 4.05 shall prevent 4.09, the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Debt incurred by the Company or any such Restricted Subsidiary from: (1) creating, incurring, assuming shall not be deemed to encumber or suffering restrict the ability to exist pay any Liens otherwise permitted in Section 4.09 or (2) restricting the sale Debt or other disposition of property obligation owed to, or assets of to make loans and advances to, the Company or any of its a Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSubsidiary.
Appears in 1 contract
Sources: Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any modifications, extensions, refinancings, renewals renewals, substitutions or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such modifications, extensions, refinancings, renewals renewals, substitutions 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 modified, extended, refinanced, renewed renewed, substituted or replaced;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
; (5v) 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, such Restricted Subsidiary; or
or (6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Parent will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law to Parent or any Restricted Subsidiary:
(a) on any its Capital Stock of such Restricted Subsidiary owned by the Company or or
(b) with respect to any other Restricted Subsidiaryinterest or participation in, or measured by, its profits;
(2) pay repay any Indebtedness owed to the Company or any other Obligation owed to Parent or any Restricted Subsidiary;
(3) make loans or advances or capital contributions to the Company Parent or any other Restricted Subsidiary; or
(4) transfer any of its property properties or assets to the Company Parent or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall not restrict any ; except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date or any other agreements Senior Credit Facility as in effect on the Closing Date, Issue Date and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; providedprovided that any amendment, howeverrestatement, that renewal, replacement or refinancing is not more disadvantageous to the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable Holders in any material respect with respect to the Holders than those such encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedthan those existing on the Issue Date;
(2) encumbrances or restrictions existing under on the 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 by reason of applicable law refinancings thereof; provided that any amendment, restatement, renewal, replacement or required by refinancing is not more disadvantageous to the Holders in any regulatory authority having jurisdiction over material respect with respect to such encumbrances or restrictions than those existing on the Company or any Restricted SubsidiaryIssue Date;
(3) existing with respect this Indenture, the Notes and the Guarantees;
(4) applicable law;
(5) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such the Person acquired by (including any Subsidiary of the Company or any Restricted SubsidiaryPerson), 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(46) customary non-assignment provisions in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the sublettingleases, assignment licenses 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 the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(C) arising or agreed to other agreements entered in the ordinary course of business, not relating to any Indebtedness, business and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiaryconsistent with past practices;
(57) Refinancing Indebtedness; provided that such restrictions are no more restrictive in any material respect than those contained in the agreements governing the Indebtedness being refunded, refinanced or extended;
(8) customary restrictions in security agreements or mortgages securing Indebtedness of Parent or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(9) customary restrictions with respect to a Restricted Subsidiary and imposed (other than any Issuer) 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 SubsidiarySubsidiary (other than any Issuer);
(10) customary restrictions imposed on the transfer of copyrighted or patented materials; or
(611) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: customary restrictions under Sale and Lease-Back Transactions that comply with Section 4.15 and that either (i) applies only in apply to the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; assets being transferred only, or (ii) apply only to the Guarantor or Issuer that is contained the subject of such Sale and Lease-Back Transaction and Parent determines in a Credit Agreement;
(B) good faith at the time such 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 on the date of the Incurrence of such Indebtedness created that any such encumbrance or restriction would does not be expected to materially impair and adversely affect the Company’s Issuers’ ability to make pay principal or of, and interest payments on on, the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (3055854 Nova Scotia Co)
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 Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Issuers to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers;
(2ii) pay any Indebtedness owed to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers;
(3iii) make loans or advances to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers; or
(4iv) transfer any of its property or assets to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers.
(b) The provisions of Section 4.05(a9.13(a) shall not restrict any encumbrances or restrictions:
(1i) existing under, by reason of or with respect to, this Indenture, the Notes, the Notes Guarantees, the Credit Agreement, any Existing Indebtedness, any other agreement in effect on the Closing Date or any other agreements as in effect on the Closing Date, and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements are no less favorable not materially more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in those agreements on the Closing Date or such other date, as applicable;
(ii) existing under, by reason of or with respect to any material Credit Facility or other Indebtedness permitted under this Indenture (and not included in clause (i) above); provided, however, that the encumbrances and restrictions contained in the agreement or agreements governing such Credit Facility or other Indebtedness (x) (A) are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement (with respect to other credit agreements or Indebtedness other than under an indenture and other than Permitted Mortgage Indebtedness or other mortgage Indebtedness) or this Indenture (with respect to other indentures), in each case, as in effect on the Closing Date, or (B) with respect to Permitted Mortgage Indebtedness or other mortgage Indebtedness, (i) are not materially more disadvantageous to the Holders than those encumbrances is customary in comparable financings and (ii) will not materially affect the Issuers’ ability to make principal or restrictions that are then interest payments on the Notes (in effect each case as determined by Parent in good faith at the time any such Indebtedness is Incurred (and that are being extended, refinanced, renewed at the time of any modification of the terms of any such encumbrance or replacedrestriction)) or (y) apply only during the occurrence of an event of default with respect to such Credit Facility or other Indebtedness;
(2iii) existing under or under, by reason of or with respect to applicable law law, rule, regulation, decree or required by administrative or court order or contained in any license, permit or other accreditation with a regulatory authority having jurisdiction over entered into the Company or any Restricted Subsidiaryordinary course of business;
(3iv) existing with respect to any Person (including Indebtedness or Capital Stock of such Person) or the property or assets of such Person acquired by the Company Parent or any Restricted SubsidiarySubsidiary of Parent (or any such Person that otherwise becomes a Restricted Subsidiary of Parent including by designation or by merger or consolidation or sale of all or substantially all of its assets into or to Parent or another Restricted Subsidiary of Parent), existing at the time of such acquisition (or such Person so becoming a Restricted Subsidiary of Parent) 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, acquired (or such Restricted Subsidiary) and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are no less favorable entered into in any material the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to the Holders than those encumbrances such Person or restrictions that are then its property or assets as in effect and that are being extended, renewed on the date of such acquisition (or replacedsuch Person so becoming a Restricted Subsidiary of Parent);
(4v) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements entered into in connection with a Permitted Business and customary provisions in leases entered into in the ordinary course of business;
(vi) in the case of clause (4) of Section 4.05(a9.13(a)(iv):
(A1) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to, or that is, a lease, license, conveyance or contract or similar property or asset;,
(B2) other encumbrances or restrictions contained in or with respect to the Master Leases and the properties subject thereto,
(3) 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 Parent or any Restricted Subsidiary of Parent not otherwise prohibited by this Indenture; ,
(4) existing under, by reason of or with respect to (i) purchase money obligations for property acquired in the ordinary course of business or (ii) capital leases or operating leases, including purchase money Indebtedness, Capitalized Lease Obligations and other Indebtedness permitted to be Incurred under Section 9.8(d)(xvii), that impose encumbrances or restrictions on the property so acquired or covered thereby, or (iii) a contract with respect to an Asset Sale, Sale and Leaseback Transaction, stock sale agreement or other transfer, conveyance or disposition permitted under this Indenture, which encumbrances or restrictions are applicable only to the property, assets or Capital Stock that are the subject of such contracts, or
(C5) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent or any Restricted Subsidiary of Parent in any manner material to the Company or any Parent and its Restricted SubsidiarySubsidiaries taken as a whole;
(5vii) 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, such Restricted Subsidiary; orSubsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(6viii) existing under, by reason of or with respect to Indebtedness permitted to be Incurred pursuant Section 9.8(d)(xiv), or other Permitted Refinancing Indebtedness permitted to be Incurred under, Section 9.8; provided, that the encumbrances and restrictions contained in the agreements governing such Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A1) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;,
(B2) 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 Companygood faith judgment of Parent); , and
(C3) the Company Parent, in its good faith, determines on the date of the Incurrence of that such Indebtedness that any such an encumbrance or restriction would will not be expected to materially impair affect the Company’s Issuers’ ability to make principal or interest payments on the Notes. ;
(x) any encumbrance or restriction pursuant to Hedging Obligations or under Permitted Non-Recourse Guarantees;
(xi) restrictions on deposits made to secure letters of credit or surety or other bonds issued in connection therewith or deposits 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 to secure letters of credit or surety or other bonds relating thereto);
(xii) restrictions on the ability of any Restricted Subsidiary to make Investments in or transfer assets to any Person that is not a Subsidiary of such Restricted Subsidiary or that is not a direct or indirect parent of such Restricted Subsidiary; and
(xiii) any encumbrances or restrictions of the type referred imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or other refinancings of those agreements, instruments or obligations referred to in clauses (i) through (xii) above, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or other refinancings are no more restrictive, taken as a whole, with respect to such encumbrances or restrictions than those contained in those agreements prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, restructuring, replacement or other refinancing
(c) Nothing contained in this Section 4.05 9.13 shall prevent the Company Parent or any Restricted Subsidiary from: of Parent from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2i) restricting the sale or other disposition of property or assets of the Company Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuers or any of its their Restricted SubsidiariesSubsidiaries or (ii) creating, Incurring, assuming or suffering to exist any Liens otherwise permitted by this Indenture. For purposes of determining compliance with this Section 9.13, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary, or other subordination provisions in any Indebtedness, shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (CareTrust REIT, 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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply to the Holders than those following encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) including those existing under or by reason of applicable law of):
(a) any encumbrance or restriction in existence on the Issue Date, including those required by the Credit Agreement or by any regulatory authority having jurisdiction over other agreement or documents entered into in connection with the Company Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings, of any Restricted Subsidiaryof the foregoing agreements or documents, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Company, are no more restrictive in any material respect, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Issue Date or refinancings thereof;
(3b) existing with respect to any Person encumbrance or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, restriction existing at the time of such the acquisition and not incurred in contemplation thereofof property, which so long as the encumbrances or restrictions relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(c) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary or 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 becoming a Restricted Subsidiary;
(d) 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 (a) through (c), so acquired, and any extensions, renewals or replacements of long as such encumbrances or restrictions; provided, however, that the encumbrances and restrictions contained in any such extensions, renewals or replacements refinancing agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(4e) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(f) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(g) any encumbrance or restriction under this Indenture; or, the Notes and the Note Guarantees;
(Ch) any encumbrance or restriction in connection with the sale of assets or Capital Interest, 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;
(i) restrictions on cash and other deposits or net worth imposed by direct or indirect customers or suppliers under contracts entered into the ordinary course of business;
(j) encumbrances or restrictions that are customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(k) 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 acquisition (except to the extent such Debt or Capital Interests were incurred or issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be Incurred;
(l) encumbrances and restrictions arising or agreed to in respect of purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of businessbusiness to the extent such restrictions and encumbrances apply to the property so acquired (and proceeds thereof) and are of the nature described in clause (iii) of the first paragraph of this Section 4.8;
(m) Liens securing Debt or other obligations otherwise permitted to be Incurred under this Indenture, not including pursuant to Section 4.12, that limit the right of the debtor to dispose of the assets subject to such Liens;
(n) encumbrances or restrictions relating to any Indebtedness, and Non-Recourse Receivable Subsidiary Indebtedness or other contractual requirements of a Receivable Subsidiary that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any is a Restricted Subsidiary in any manner material connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the Company or any Restricted Subsidiary;
(5) with respect to a Restricted Subsidiary accounts receivable 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 other financial assets of, such Restricted Subsidiary; or
(6) contained described in the terms definition of any Indebtedness or any agreement pursuant Qualified Receivables Transaction which are subject to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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)Qualified Receivables Transaction; and
(Co) any other agreement governing Debt entered into after the Company determines Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the date of the Incurrence of such Indebtedness Issue Date with respect to that any such encumbrance or restriction would not be expected Restricted Subsidiary pursuant to materially impair the Company’s ability to make principal or interest payments agreements in effect on the NotesIssue Date. Nothing contained in this Section 4.05 4.8 shall prevent the Company or any Restricted Subsidiary from: from (1i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 4.12 or (2ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Company or any of its Restricted SubsidiariesSubsidiaries Incurred in accordance with Section 4.9 and Section 4.12 hereof.
Appears in 1 contract
Sources: Indenture (Oshkosh Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in clause (b) below, the Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on or in respect of any Capital Stock Equity Interests of such a Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary;,
(3iii) make loans or advances to to, or Guarantee any Debt or other obligations of, or make any Investment in, the Company Issuer or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aclause (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in this Indenture or any other agreements in effect on the Closing Issue Date, and any amendments, modifications, restatements, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, refinancingsmodification, renewals restatement, extension, renewal, replacement or replacements are refinancing are, taken as a whole, in the good faith judgment of the Issuer, no less favorable in any material respect to the Holders of the Notes than those the encumbrances or restrictions that are then in effect and that are being amended, modified, restated, extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3iii) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company Issuer or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquired, event and any amendments, modifications, restatements, extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, renewals modification, restatement, extension, renewal, replacement or replacements are refinancing are, taken as a whole, in the good faith judgment of the Issuer, as the case may be, no less favorable in any material respect to the Holders of the Notes than those the encumbrances or restrictions that are then in effect and that are being amended, modified, restated, extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in paragraph (a)(iv) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, including the LGI-Chile Shareholders’ Agreement and the LGI-Colombia Members’ Agreement and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar property Person (in each case relating solely to the respective partnership, limited liability company, joint venture or asset;
similar Person) or (Biii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of 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 Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company Issuer or any Restricted Subsidiary;
(5v) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.14;
(6A) contained in the terms of governing any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:Debt if (as determined in good faith by the Issuer)
(A) the encumbrance or restriction either: (i) applies only in the event encumbrances or restrictions are ordinary and customary for a financing of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or that type and (ii) is contained the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Issuer or any Guarantor to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous whole, no less favorable in any material respect to the Holders of the Notes than is customary those contained in comparable financings (as determined by the Company)agreements governing the Debt being refinanced; andor
(CB) required pursuant to this Indenture, the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company Notes or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesNote Guaranty.
Appears in 1 contract
Sources: Indenture (GeoPark LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Wise Intermediate Holdings will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer agree to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company its Equity Interests to Wise Intermediate Holdings or any of its Restricted Subsidiaries, or with respect to any other Restricted Subsidiary;
(2) interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Wise Intermediate Holdings or any other of its Restricted SubsidiarySubsidiaries;
(32) make loans or advances to the Company Wise Intermediate Holdings or any other of its Restricted SubsidiarySubsidiaries;
(3) pay any liabilities owed to Wise Intermediate Holdings or any of its Restricted Subsidiaries; or
(4) transfer any of its property properties or assets to the Company Wise Intermediate Holdings or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of Section 4.05(a4.11(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing those in existence on the Closing Date in the Indenture, the Existing Opco Indenture (and related security documents), the Credit Agreement (and related security documents) or any other agreements in effect on the Closing Date, Date and any extensions, refinancings, renewals renewals, replacements, amendments, supplements or replacements restatements of such agreements; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals renewals, replacements, amendments, supplements or replacements restatements are no not materially less favorable favorable, taken as a whole (as determined by Wise Intermediate Holdings in any material respect good faith), to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed renewed, replaced, amended, supplemented or replacedrestated;
(2) existing under applicable law, rules, regulations or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorders;
(3) existing any agreement or instrument (including Acquired Indebtedness) applicable to or binding on a Person, or any property or assets, acquired by Wise Intermediate Holdings or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such agreement or instrument was entered into in connection with respect or in contemplation 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, or the property or assets of such Person acquired by the Company or any Restricted SubsidiaryPerson, 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 assets, so acquired; provided that, in the property or assets case of such Person so acquiredacquired Person’s Indebtedness, such Indebtedness was permitted to be incurred by the terms of the Notes and this Indenture, and any extensions, renewals refinancings, renewals, amendments or replacements of such encumbrances or restrictionsagreements; provided, however, provided further that the encumbrances and restrictions in any such extensions, renewals refinancings, renewals, amendments or replacements are no not materially less favorable favorable, taken as a whole (as determined by Wise Intermediate Holdings in any material respect good faith), to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, renewed refinanced, renewed, amended or replaced;
(4) customary provisions contained in any agreement for the sale or other disposition of a Restricted Subsidiary or assets thereof that restricts distributions by such Restricted Subsidiary or the transfer of such assets pending such sale or other disposition;
(5) those contained in the case terms of clause (4) of Section 4.05(a):any Indebtedness permitted to be incurred under this Indenture if either:
(A) Wise Intermediate Holdings determines in good faith that restrict the encumbrances and restrictions, taken as a whole, are not materially less favorable to the Holders than those encumbrances and restrictions contained in the Credit Agreement; or
(B) (x) Wise Intermediate Holdings determines in good faith that the encumbrances and restrictions, taken as a whole, are not materially more disadvantageous to the Holders of the Notes than is customary manner in comparable financings available to the Issuers at such time; and (y) Wise Intermediate Holdings determines in good faith that, based on its assessment of the obligor’s ability to meet the financial and other covenants contained in the terms of such Indebtedness and other factors deemed relevant by Wise Intermediate Holdings, such encumbrances and restrictions will not cause the Issuers not to have the funds necessary to pay the principal (at maturity) of or interest on the Notes; provided, in each case, that such Indebtedness was permitted to be incurred by the terms of this Indenture;
(6) customary provisions with respect to the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or conveyance, contract or similar property or asset;
(B7) existing customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business and which the Board of Directors of Wise Intermediate Holdings determines in good faith will not adversely affect the Issuers’ ability to make payments of principal or interest on the Notes in any material respect;
(8) restrictions on cash or other deposits or net worth under contracts entered into in the ordinary course of business;
(9) encumbrances and restrictions in Indebtedness refinancing other Indebtedness; provided that the encumbrances and restrictions contained in the new Indebtedness are not materially less favorable, taken as a whole (as determined by virtue of Wise Intermediate Holdings in good faith), to the Holders, than those contained in the Indebtedness being refinanced;
(10) encumbrances on property at the time the property was acquired by Wise Intermediate Holdings or a Restricted Subsidiary, which encumbrances are not applicable to any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property other properties or assets of the Company Wise Intermediate Holdings or any its Restricted Subsidiary not otherwise prohibited by this Indenture; orSubsidiaries;
(C11) customary restrictions imposed by an agreement to sell, transfer or otherwise dispose of assets or Equity Interests to any person pending the closing of such sale, transfer or other disposition;
(12) encumbrances or restrictions with respect to a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that such encumbrances and restrictions are necessary or advisable to effect the transactions contemplated under such Qualified Securitization Transaction in the good faith determination of Wise Intermediate Holdings; and
(13) any encumbrances or restrictions arising or agreed to in the ordinary course of business, and not relating to any Indebtedness, and that Wise Intermediate Holdings determines in good faith do not, individually or in the aggregate, reduce materially affect 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s Issuers’ ability to make future principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.11 shall prevent the Company Wise Intermediate Holdings or any Restricted Subsidiary from: from (1x) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in pursuant to Section 4.09 4.06 or (2y) restricting the sale or other disposition of property or assets of the Company Wise Intermediate Holdings or any of its Restricted Subsidiaries that secure Indebtedness of the Company Wise Intermediate Holdings or any of its Restricted Subsidiaries. For purposes of determining compliance with this Section 4.11, the subordination of loans or advances made to Wise Intermediate Holdings or a Restricted Subsidiary to other Indebtedness incurred by Wise Intermediate Holdings 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 (Constellium N.V.)
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 Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Company to:
(1i) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted SubsidiaryStock;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3ii) make loans or advances to the Company or any other Restricted SubsidiarySubsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions Subsidiary of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements Company, except in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of each case for such agreements; provided, however, 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 of:
(b) applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3c) existing with respect to any Person or the property or assets of such Person acquired by Indenture and the Company 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 than such Person or the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replacedSecurities;
(4d) in the case of clause (4) of Section 4.05(a):
(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 assetCredit Agreement;
(Be) existing by virtue customary non-assignment and similar provisions of any transfer ofcontract, agreement to transfer, option lease 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 license entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5f) 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 ofany instrument governing Acquired Indebtedness, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous applicable to any Person, or the Holders properties or assets of any Person, other than the Notes than is customary in comparable financings (as determined by Person or the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property properties or assets of the Company Person so acquired;
(g) agreements existing on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or any refinancings of its Restricted Subsidiaries those agreements to the extent and in the manner such agreements are in effect on the Issue Date; provided that secure Indebtedness the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially 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 (as determined in good faith by the Board of Directors of the Company Company);
(h) any encumbrance or restriction on the transfer of assets subject to any Lien permitted under the Indenture imposed by the holder of its Restricted Subsidiaries.such Lien;
(i) restrictions imposed by any agreement to sell assets or Capital Stock permitted under the Indenture to any Person pending the closing of such sale;
Appears in 1 contract
Sources: Third Supplemental Indenture (General 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictionsrestrictions that:
(1i) existing on exist in the Closing Date Existing Credit Facility, the Senior Note Indenture, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2ii) existing exist under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing exist 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of paragraph (a) of this Section 4.05(a):4.06,
(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 exist by virtue of any transfer of, agreement to transfer, option or right with respect to, to or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; , or
(C) arising arise or are agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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;
(5v) with respect to a Restricted Subsidiary and Subsidiary, are 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) exist under a Receivables Program; provided that the encumbrances and restrictions in such Receivables Program are no less favorable in any material respect to the holders than the encumbrances and restrictions in the Existing Credit Facility;
(vii) exist under Purchase Money Indebtedness and Capitalized Lease Obligations permitted to be incurred pursuant to clause (b)(ix) of Section 4.03 that impose limitations of the type described above under clause (iv) of this Section relating solely to the property or assets being financed thereby;
(viii) requiring the subordination in right of payment of any intercompany obligations between the Company and its Restricted Subsidiaries to any Senior Indebtedness; or
(6ix) restrictions contained in any documents governing any Senior Indebtedness incurred after the Closing Date which are not more restrictive than those contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Existing Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the NotesFacility. Nothing contained in this Section 4.05 4.06 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in by Section 4.09 4.10 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Agco Corp /De)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (ai) The Company shall Except as provided below, the Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Parent Guarantor or any other Restricted Subsidiary;
(2) pay any Indebtedness owed to the Company Parent Guarantor or any other Restricted Subsidiary;
(3) make loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary; or
(4) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any other Restricted Subsidiary.
(bii) The provisions of clause (i) of this Section 4.05(a4.1(c) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Date or any other in agreements as in effect on the Closing Original Issue Date, in the New Notes, the Note Guarantee, or this Indenture, and any extensions, refinancings, supplements, amendments, renewals or replacements of such any of the foregoing agreements; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, refinancingsrefinancing, renewals renewal or replacements replacement, taken as a whole, 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, supplemented, amended, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation, license, concession, approval, decree or required by any regulatory authority having jurisdiction over order applicable to the Company or any relevant Restricted Subsidiary;
(3) resulting from restrictions on cash or other deposits or other customary requirements imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(4) existing with respect to any Person or the property or assets of such Person Person, or relating to or existing under any Indebtedness or other obligations acquired or incurred by the Company Parent Guarantor 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 than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, supplements, amendments, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, are no not materially 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, supplemented, amended, renewed or replaced;
(45) that (x) otherwise would be prohibited by the provision described in clause (i)(4) of this Section 4.1(b) if they arise or are agreed to in the case ordinary course of clause business, (4) of Section 4.05(a):y)
(Ai) that restrict in a customary manner the subletting, assignment or other transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;
(Bii) existing exist by virtue of any transfer ofIndebtedness, Lien, agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of the Company Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
Indenture or (Ciii) arising or agreed to in the ordinary course of business, do not relating relate to any Indebtedness, and that or (z) do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent Guarantor or any Restricted Subsidiary in any manner material to the Company or any Parent Guarantor and its Restricted SubsidiarySubsidiaries taken as a whole;
(56) contained in any agreement pursuant to which Indebtedness not otherwise prohibited by this Indenture was Incurred; provided that the encumbrance or restriction applies only in the event of a default with respect to a Restricted Subsidiary and covenant contained in such Indebtedness; or
(7) imposed pursuant to an agreement that has been entered into for the a sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) that is contained in a Credit 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 permitted by the CompanySection 4.1(g); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Camposol Holding PLC)
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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the Credit Agreement, the Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person, or with respect to any property or assets, at the time the Person or the property or assets of such Person are acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (y) were not put in place in anticipation of such Person so acquired, event; and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances any of the foregoing, or restrictions; providedof any subsequent extension, howeverrenewal, that replacement or refinancing thereof, provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in the case of clause (4a)(iv) of Section 4.05(a):arising or agreed to
(A) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;,
(B) existing with respect to any assets comprising a Permitted Business in which the Company or any Restricted Subsidiary has ownership of an undivided interest, pursuant to the agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restrictions are consistent with the Company's past practice, or
(C) by virtue of any transfer ofPermitted Lien on, or agreement to transfer, option or similar 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, of or property and assets of, such of the Restricted Subsidiary; orSubsidiary that is permitted by the Indenture;
(6vi) on the ability of Restricted Subsidiaries to consummate transactions of the type described in paragraph (a)(i), (ii), (iii) or (iv) provided for by any credit agreement or security document relating to Debt permitted to be incurred under the Indenture; provided that such restrictions are not more restrictive than the restrictions contained in the terms of any Indebtedness Indenture or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(Bvii) required pursuant to Section 4.06(b)(ii);
(viii) imposed on any Joint Venture pursuant to customary limitations contained in the encumbrance constituent documents and agreements governing such Joint Venture; or
(ix) existing under any credit agreement or restriction security document relating to Debt incurred pursuant to clause (b)(x) or (b)(xi) under Section 4.06 or Permitted Refinancing Debt in respect thereof; provided that (a) such restrictions apply only to the Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries and (b) such Debt is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined Guaranteed by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries 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 Restricted Subsidiary of Parent to:
(1i) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company to Parent or any other of its Restricted SubsidiarySubsidiaries;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3ii) make loans or advances or to the Company pay any Indebtedness or other obligation owed to Parent or any other Restricted SubsidiarySubsidiary of Parent; or
(4iii) transfer any of its property or assets to the Company Parent or any other Restricted SubsidiarySubsidiary of Parent.
(b) The provisions of Section 4.05(a4.08(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply 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 of:
(i) applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3ii) existing this Indenture, the Notes and any Note Guarantees;
(iii) customary provisions of any contract, lease or license restricting assignments, subservicing, subcontracting or other transfers;
(iv) any 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 or the properties or assets of the Person so acquired;
(v) the Existing Facilities as each exists on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that any restrictions imposed pursuant to any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary with respect to facilities similar to the Existing Facilities (under the relevant circumstances) and will not materially affect the Issuers’ ability to make anticipated principal, premium and interest payments on the Notes (as determined in good faith by PHH);
(vi) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(vii) restrictions on the transfer of assets (other than cash) held in a Restricted Subsidiary of Parent imposed under any agreement governing Indebtedness incurred in accordance with this Indenture;
(viii) provisions in agreements evidencing MTM MSR Indebtedness or Permitted Funding Indebtedness, in each case, that impose restrictions on the collateral securing such Indebtedness, provide for financial covenants, limitations on affiliate transactions, the transfer of all or substantially all assets, other fundamental changes or other customary limitations which, in each case as determined in good faith by PHH, are customary or will not materially affect the ability of the Issuers to pay the principal, interest and premium on the Notes;
(ix) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such L▇▇▇;
(x) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person or pending the property or assets closing of such sale;
(xi) any agreement or instrument governing Capital Stock of any Person acquired by the Company or any Restricted Subsidiary, existing at the time of that is acquired; provided that such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not created in contemplation of such acquisition;
(xii) the requirements of any Securitization, Warehouse Facility or MSR Facility that are exclusively applicable to any Person Securitization Entity, Warehouse Facility Trust, MSR Facility Trust or special purpose Subsidiary of Parent formed in connection therewith;
(xiii) customary provisions in joint venture and other similar agreements relating solely to the assets or the Equity Interests of such joint venture;
(xiv) customary provisions in leases, licenses and other agreements entered into in the ordinary course of business;
(xv) restrictions on cash or other deposits or net worth imposed by customers or other counterparties of Parent and its Restricted Subsidiaries under contracts entered into in the ordinary course of business;
(xvi) purchase money obligations for property or assets acquired in the ordinary course of any Person other than such Person or business and Capitalized Lease Obligations that impose restrictions on the property purchased or assets leased of such Person so acquired, and any extensions, renewals or replacements the nature described in clause (iii) of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or Section 4.08(a);
(xvii) restrictions that are then in effect and that are being extended, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 were created by virtue of any transfer of, agreement to transfer, transfer or option or right with respect to, or Lien on, to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by under 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, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5xviii) with respect other Indebtedness, Disqualified Capital Stock or Preferred Stock permitted to a Restricted Subsidiary and imposed be incurred subsequent to the Issue Date pursuant to an agreement the provisions of Section 4.09; provided that has been entered into for the sale or disposition of all or substantially all restrictions will not materially affect the ability of the Capital Stock ofIssuers to pay the principal, or property interest and assets ofpremium on the Notes, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 in good faith by the Company)PHH; and
(Cxix) the Company determines on the date any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Incurrence contracts, instruments or obligations referred to in clauses (ii) through (iv) and (vi) through (xviii) of this Section 4.08(b); provided that such Indebtedness that any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of PHH’s Board of Directors, whose judgment shall be conclusively binding, not materially more restrictive with respect to such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing dividend and other payment restrictions, taken as a whole, than those contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale dividend or other disposition of property payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesrefinancing.
Appears in 1 contract
Sources: Indenture (Onity Group 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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iii) sell, lease or transfer any of its property or assets to the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) The provisions of Section 4.05(a4.08(a) hereof shall not restrict any apply to the following encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing any encumbrance or restriction in existence on the Closing Issue Date, including those required by the Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings thereof, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings, in the good faith judgment of the Company, are no more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Issue Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 replacedrefinancings thereof;
(2) existing under any encumbrance or by reason restriction pursuant to an agreement relating to an acquisition of applicable law property, so long as the encumbrances or required by restrictions in any regulatory authority having jurisdiction over such agreement relate solely to the Company property so acquired (and are not or any Restricted Subsidiarywere not created in anticipation of or in connection with the acquisition thereof);
(3) existing any encumbrance or restriction which exists with respect to any a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the property Company on or assets after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person acquired by the Company or any becoming a Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are 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 becoming a Restricted Subsidiary;
(4) 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 clauses (1) through (3) of this Section 4.08(b), so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that long as the encumbrances and restrictions contained in any such extensions, renewals or replacements refinancing agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(45) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(6) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(7) any encumbrance or restriction under this Indenture; or, the Notes and the Note Guarantees;
(C8) any encumbrance or restriction under the sale of assets 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) arising restrictions on cash and other deposits or agreed net worth imposed by customers under contracts entered into the ordinary course of business;
(10) customary provisions with respect to the disposition or distribution of assets or property in Joint Venture agreements, partnership agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(11) any instrument governing Debt or Capital Interests 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 Debt or Capital Interests was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be incurred;
(12) purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of business, not relating to any Indebtedness, and business that do not, individually or in the aggregate, reduce the value of impose restrictions on that property or assets so acquired of the Company or any Restricted Subsidiary nature described in any manner material to the Company or any Restricted Subsidiaryclause (iii) of Section 4.08(a) hereof;
(513) with respect Liens securing Debt otherwise permitted to a Restricted Subsidiary and imposed pursuant to an agreement be incurred under this Indenture, including the provisions of Section 4.12 hereof that has been entered into for limit the sale or disposition of all or substantially all right of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant debtor to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders dispose of the Notes than is customary in comparable financings (as determined by the Company)assets subject to such Liens; and
(C14) any other agreement governing Debt entered into after the Company determines Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the date of the Incurrence of such Indebtedness Issue Date with respect to that any such encumbrance or restriction would not be expected Restricted Subsidiary pursuant to materially impair the Company’s ability to make principal or interest payments agreements in effect on the Notes. Issue Date.
(c) Nothing contained in this Section 4.05 4.08 shall prevent the Company or any Restricted Subsidiary from: from (1i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in by Section 4.09 4.12 hereof or (2ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Company or any of its Restricted SubsidiariesSubsidiaries Incurred in accordance with Sections 4.09 and 4.12 hereof.
Appears in 1 contract
Sources: Indenture (Fti Consulting Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 4.09(b), the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.09(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in agreements governing the U.S. Credit Facility, the Iceland Credit Facility, this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person Person, or with respect to any property or assets, at the time the Person, property or assets of such Person are acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (y) were not put in place in anticipation of such Person so acquired, event; and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances any of the foregoing, or restrictions; providedof any subsequent extension, howeverrenewal, that replacement or refinancing thereof, provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) in the case of clause (4iv) of the type described in Section 4.05(a):4.09(a)(iv) arising or agreed to
(A) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;,
(B) existing with respect to any assets comprising a Permitted Business in which the Company or any Restricted Subsidiary has ownership of an undivided interest, pursuant to the agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restrictions are consistent with the Company’s past practice, or
(C) by virtue of any transfer ofPermitted Lien on, or agreement to transfer, option or similar 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, of or property and assets ofof the Restricted Subsidiary that is permitted by this Indenture;
(vi) on the ability of Restricted Subsidiaries to consummate transactions of the type described in Sections 4.09(a)(i), (ii), (iii) or (iv) provided for by any credit agreement or security document relating to Debt permitted to be incurred under this Indenture; provided that such Restricted Subsidiaryrestrictions are not more restrictive than the restrictions contained in this Indenture or the U.S. Credit Facility;
(vii) required pursuant to Section 4.06(b)(iii);
(viii) imposed on any Joint Venture pursuant to customary limitations contained in the constituent documents and agreements governing such Joint Venture; or
(6ix) contained in the terms of existing under any Indebtedness credit agreement or any agreement security document relating to Debt incurred pursuant to which such Indebtedness was issued if:
Sections 4.06(b)(ii), (Ab)(xi) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (iib)(xii) is contained or Permitted Refinancing Debt in a Credit Agreement;
respect thereof; provided that (Ba) such restrictions apply only to the encumbrance or restriction Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries, (b) such Debt is not materially more disadvantageous to Guaranteed by the Holders Company (except as permitted thereby) and (c) as determined in good faith by the Board of Directors of the Notes than is customary in comparable financings (as determined by Company, such encumbrances and restrictions would not, at the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not time agreed to, be expected to materially impair adversely affect the Company’s ability of the Company to make principal or interest payments on the Notes. Nothing contained in .
(c) For purposes of determining compliance with this Section 4.05 shall prevent 4.09, the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Debt incurred by the Company or any such Restricted Subsidiary from: (1) creating, incurring, assuming shall not be deemed to encumber or suffering restrict the ability to exist pay any Liens otherwise permitted in Section 4.09 or (2) restricting the sale Debt or other disposition of property obligation owed to, or assets of to make loans and advances to, the Company or any of its a Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSubsidiary.
Appears in 1 contract
Sources: Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in the Credit Agreement, the Vendor Financing Arrangement, the 15% Indenture, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
4.07, (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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, 49 individually or in the aggregate, reduce 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;
(5v) 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, such Restricted Subsidiary; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.07 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 4.05 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Pagemart Wireless 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of 49 such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in the Credit Agreements, this Indenture or any other agreements in effect on the Closing DateDate (and upon consummation of the JSC Transaction, existing on the JSC Transaction Date in the JSC Credit Agreement or any other agreements in effect on the JSC Transaction Date under which JSC or any of its Subsidiaries is a party or any of their assets are bound), and any extensions, refinancings, renewals or replacements of such agreementsany of the foregoing; provided, however, PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no not materially 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of Section 4.05(a):
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) 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
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, reduce detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any and its Restricted SubsidiarySubsidiaries taken as a whole;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance customary provisions with respect to a financial covenant contained the disposition or distribution of assets or property in such Indebtedness or agreement; or (ii) is contained joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in a Credit Agreementthe ordinary course of business;
(Bvii) any agreement or instrument governing Indebtedness (whether or not outstanding) of any Foreign Subsidiary of the encumbrance Company permitted to be incurred pursuant to clause (x) under SECTION 4.03 so long as (1) such agreement or restriction instrument is not materially 50 applicable to any Person or the property or assets of any Person other than such Foreign Subsidiary or the property or assets of such Foreign Subsidiary and its Foreign Subsidiaries and (2) not more disadvantageous to than 20% of such Foreign Subsidiary's assets are located in the Holders of the Notes than is customary in comparable financings (as determined by the Company)United States; and
(Cviii) the Company determines on the date any restriction in any agreement or instrument of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notesa Receivables Subsidiary governing a Qualified Securitization Transaction. Nothing contained in this Section SECTION 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section by SECTION 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Stone Container Corp)
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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary;,
(3) make loans or advances to the Company Issuer or any other Restricted Subsidiary; , or
(4) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in the Credit Agreement, the First-Priority Security Documents, the Indenture, the Security Documents or any other agreements in effect on the Closing Issue Date, and any amendments, modifications, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, refinancingsmodification, renewals extension, renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
order; (3) existing existing:
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company Issuer or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquired, event and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictionsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) in the case of clause (4) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Roundy's, 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) arising pursuant to the Credit Agreement;
(ii) existing on the Closing Date under this Indenture, or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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;
(2iii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iv) 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 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, acquired and any extensions, refinancings, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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;
(4v) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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;
, or (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;
(Cvi) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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;
(5vii) 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, such Restricted Subsidiary and that are customary for such transactions;
(viii) deferral of rights of subrogation pursuant to Guarantees otherwise permitted under this Indenture;
(ix) existing pursuant to any agreement governing Indebtedness permitted to be Incurred under Section 4.03; provided that the provisions relating to such encumbrance or restriction contained in 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 contained in the Credit Agreement as in effect on the Closing Date;
(x) Indebtedness or other contractual requirements of a Securitization Subsidiary in connection with a Permitted Receivables Financing; provided that such restrictions apply only to such Securitization Subsidiary; or
(6xi) contained provisions in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance joint venture agreements with respect to a financial covenant contained the disposition or distribution of assets or property in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders ordinary course of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notesbusiness. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (VHS of Phoenix 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date under the Credit Agreement, this Indenture, the Notes or any other agreements in effect on the Closing Date, and any amendments, extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, extensions, refinancings, renewals or replacements taken as a whole 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 amended, extended, refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (PSF Group 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) 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, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrances encumbrance or restrictionsrestriction; provided, however, 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;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) existing by virtue of any transfer of, agreement to transfer, option or right with 55 50 respect to, or Lien on, any property or assets of the Company Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basis. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any modifications, extensions, refinancings, renewals renewals, substitutions or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such modifications, extensions, refinancings, renewals renewals, substitutions 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 modified, extended, refinanced, renewed renewed, substituted or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, acquired and any modifications, extensions, renewals refinancings, renewals, substitutions or replacements of such encumbrances or restrictionsagreements; provided, however, provided that the encumbrances and restrictions in any such modifications, extensions, renewals refinancings, renewals, substitutions or replacements are no less favorable in any material respect to the Holders holders of Notes than those encumbrances or restrictions that are then in effect and that are being modified, extended, renewed refinanced, renewed, substituted or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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 to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:: 60 52
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.05(a) shall not restrict prohibit any encumbrances or restrictions:
(1i) existing on the Closing Date under or by reason of any other agreements agreement in effect on the Closing Issue Date, and any amendments, supplements, extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, supplements, extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more restrictive than those encumbrances or restrictions that are then in effect and that are being amended, supplemented, extended, refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing with respect to any Person Restricted Subsidiary acquired by the Company or any Restricted Subsidiary after the Issue Date, or the property or 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, and any amendments, supplements, extensions, refinancings, renewals or replacements of agreements containing such encumbrances or restrictions; provided, however, provided that the encumbrances and restrictions in any such amendments, supplements, extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more restrictive than those encumbrances or restrictions that are then in effect and that are being amended, supplemented, extended, refinanced, renewed or replaced;
(4iv) in the case of clause (4) of Section 4.05(a):
4.13(a)(iv), (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is, or is subject to, a lease, purchase mortgage obligation, license, conveyance or contract or similar property or asset;
, (B) existing by virtue of any transfer of, agreement 61 53 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
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, reduce materially 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;
(5v) 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 ofin, or property and assets of, such Restricted Subsidiary; provided that such restriction shall terminate if such transaction is abandoned or if such transaction is not consummated within six months of the date such agreement was entered into; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders holders of the Notes than is customary in comparable financings (as determined by the Company); and
Board of Directors) and (C) the Company Board of Directors determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 4.13 shall prevent the Company or any Restricted Subsidiary from: (1) from creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting 4.14 that limit the sale or other disposition of property or assets right of the Company or any of its Restricted Subsidiaries that secure Indebtedness debtor to dispose of the Company or any of its Restricted Subsidiariesassets securing such Indebtedness.
Appears in 1 contract
Sources: Indenture (Versatel Telecom Bv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Prior to the Covenant Change Date, the Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary its Equity Interests owned by the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
, (3b) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary thereof, or (4c) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, howeverthat, that the encumbrances and preceding restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect will not apply to the Holders than those following encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) including those existing under or by reason of):
(i) any encumbrance or restriction in existence on the Effective Date and set forth on Schedule 8.07 (including pursuant to any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings of applicable law any of the agreements or required by documents providing for such existing encumbrances and restrictions, so long as such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Company, are no more restrictive in any regulatory authority having jurisdiction over material respect, taken as a whole, with respect to such encumbrances and restrictions than those contained in the Company or any Restricted Subsidiaryagreements and documents set forth on Schedule 8.07);
(3ii) existing with respect to any Person encumbrance or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, restriction existing at the time of such the acquisition and not incurred in contemplation thereofof property, which so long as the encumbrances or restrictions relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(iii) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Effective Date, which is in existence at the time such Person becomes a Restricted Subsidiary or 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 Person;
(iv) any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, refunding, replacement, refinancing or extension of Indebtedness issued pursuant to an agreement containing any encumbrance or restriction referred to in the foregoing clauses (i) through (iii), so acquired, and any extensions, renewals or replacements of long as such encumbrances or restrictions; provided, however, that the encumbrances and restrictions contained in any such extensionsagreement are not materially more restrictive, renewals or replacements are no less favorable in any material taken as a whole, with respect to the Holders such encumbrances and restrictions than those encumbrances contained in the agreements governing the Indebtedness being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(4v) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or assignment or transfer of any property or asset that is a lease, licensesublease, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; oror provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(Cvi) any encumbrance or restriction by reason of applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(vii) any encumbrance or restriction under this Agreement or any other Loan Document;
(viii) any encumbrance or restriction in connection with the sale of assets or Equity 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;
(ix) restrictions on cash and other deposits or net worth imposed by direct or indirect customers or suppliers under contracts entered into the ordinary course of business;
(x) encumbrances or restrictions that are customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(xi) encumbrances and restrictions under any instrument governing Indebtedness or Equity Interests 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 Indebtedness or Equity Interests were incurred or issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement;
(xii) encumbrances and restrictions arising in respect of purchase money obligations (including capital leases) for property acquired in the ordinary course of business to the extent such restrictions and encumbrances apply to the property so acquired (and proceeds thereof) and are of the nature described in clause (iii) of this Section 8.07;
(xiii) Liens securing Indebtedness or other obligations otherwise permitted under this Agreement that limit the right of the debtor to dispose of the assets subject to such Liens;
(xiv) encumbrances or restrictions relating to any Securitization Obligations or other contractual requirements of a Securitization Subsidiary that is a Restricted Subsidiary in connection with a Permitted Securitization; provided, that, such restrictions apply only to such Securitization Subsidiary or the accounts receivable and other financial assets which are subject to such Permitted Securitization;
(xv) any other agreement governing Indebtedness entered into after the Effective Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Effective Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Effective Date;
(xvi) restrictions on the sale, lease or transfer of property or assets arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any and the Restricted Subsidiary;
(5) with respect to Subsidiaries taken as 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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)whole; and
(Cxvii) the Company determines on the date of the Incurrence of such Indebtedness that encumbrances or restrictions arising under deferred compensation arrangements or any “rabbi trust” formed in connection with any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing arrangement; provided, further, that, nothing contained in this Section 4.05 8.07 shall prevent the Company or any Restricted Subsidiary from: from (1A) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 8.01, or (2B) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSubsidiaries incurred in accordance with Section 8.05A and Section 8.01.
Appears in 1 contract
Sources: Credit Agreement (Oshkosh 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than a Receivables Subsidiary) to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(2) pay repay any Indebtedness 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.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) that are customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized Lease Obligations that impose restrictions on the property purchased or leased;
(5) 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 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, acquired and any extensions, refinancings, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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;
(46) in the case of clause (4) of the first paragraph of this Section 4.05(a):4.08:
(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 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 normal course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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;
(57) 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, such Restricted Subsidiary; or;
(6) 8) relating to a Subsidiary Guarantor and contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 CompanyCompany in good faith); and
(CB) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s ability to make principal or interest payments on the Notes;
(9) arising from customary provisions in joint venture agreements and other similar agreements;
(10) existing in the documentation governing any Permitted Securitization; or;
(11) contained in any agreement governing Indebtedness permitted under clause (8) of the second paragraph of part (a) of Section 4.09. Nothing contained in this Section 4.05 4.08 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 4.12 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Hanesbrands 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 to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.05(a) shall not restrict prohibit any encumbrances or restrictions:
(1i) existing on the Closing Date under or by reason of any other agreements agreement in effect on the Closing Issue Date, and any amendments, supplements, extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, supplements, extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more restrictive than those encumbrances or restrictions that are then in effect and that are being amended, supplemented, extended, refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing with respect to any Person Restricted Subsidiary acquired by the Company or any Restricted Subsidiary after the Issue Date, or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, and existing at the time of such acquisition and not incurred 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, and any amendments, supplements, extensions, refinancings, renewals or replacements of agreements containing such encumbrances or restrictions; provided, however, provided that the encumbrances and restrictions in any such amendments, supplements, extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more restrictive than those encumbrances or restrictions that are then in effect and that are being amended, supplemented, extended, refinanced, renewed or replaced;
(4iv) in the case of clause (4) of Section 4.05(a):
4.13(a)(iv), (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is, or is subject to, a lease, purchase mortgage obligation, 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
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, reduce materially 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;
(5v) 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 ofin, or property and assets of, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders holders of the Notes than is customary in comparable financings (as determined by the Company); and
Board of Directors in good faith) and (CB) the Company Board of Directors determines on the date of the Incurrence of such Indebtedness in good faith that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes; or
(vii) customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into in the ordinary course of business with respect to a Restricted Subsidiary that the Company jointly controls with a strategic commercial partner who has an equity market capitalization, a net asset value or annual revenues of at least Euro 500 million and is not an Affiliate of the Company; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary. Nothing contained in this Section 4.05 4.13 shall prevent the Company or any Restricted Subsidiary from: (1) from creating, incurringIncurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting 4.14 that limit the sale or other disposition of property or assets right of the Company or any of its Restricted Subsidiaries that secure Indebtedness debtor to dispose of the Company or any of its Restricted Subsidiariesassets securing such Indebtedness.
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 Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of (other than pursuant to this Indenture or any kind law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by Interests to the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt owed to the Company or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply to the Holders than those following encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(a) any encumbrance or restriction in existence on the Issue Date, including those under the Credit Agreement, the Existing Receivables Facility or the Receivables Purchase Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of applicable law the Company, are no more restrictive in any material respect, taken as a whole, with respect to such dividend or required by any regulatory authority having jurisdiction over other payment restrictions, than those contained in these agreements on the Company Issue Date or any Restricted Subsidiaryrefinancings thereof;
(3b) existing any encumbrance or restriction which exists with respect to any Person or the an acquired property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing in existence at the time of such acquisition and not incurred in contemplation thereofpursuant to an agreement, which so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(c) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person becoming 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 becoming a Restricted Subsidiary;
(d) any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement containing any encumbrance or restriction referred to in the foregoing clauses (a) through (c), so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that long as the encumbrances and restrictions contained in any such extensions, renewals or replacements refinancing agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Company;
(4e) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(C) arising or agreed to provisions in agreements that restrict the ordinary course assignment of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company such agreement or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiaryrights thereunder;
(5) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Triumph Group 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 Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by to the Company or any of its Restricted Subsidiaries, or with respect to any other Restricted Subsidiary;
(2) interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any other of its Restricted SubsidiarySubsidiaries;
(3b) make loans or advances to the Company or any other of its Restricted SubsidiarySubsidiaries; or
(4c) transfer any of its property properties or assets to the Company or any other of its Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementsSubsidiaries; provided, however, that the encumbrances and preceding restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect will not apply to the Holders than those encumbrances or restrictions that are then existing under or by reason of:
(1) agreements governing Indebtedness outstanding on the Issue Date, the Credit Agreement and Credit Facilities 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 being extendednot, refinancedin the good faith judgment of the Board of Directors of the Company, renewed or replacedmaterially 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;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over this Indenture, the Company or any Restricted SubsidiaryNotes, the Note Guarantees and the Collateral Documents;
(3) existing with respect to applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(4) (a) any Person instrument governing Indebtedness or the property or assets Capital Stock of such a Person acquired by the Company or any of its Restricted Subsidiary, existing Subsidiaries as in effect at the time of such acquisition and not (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation thereofof such acquisition), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of any Person other than such Person or the property or assets of such Person Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred; and (b) any extensionsamendment, renewals modification, replacement or replacements of such encumbrances or restrictionsrefinancing thereof; provided, however, that the encumbrances and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then not, in effect and that are being extendedthe good faith judgment of the Board of Directors of the Company, renewed materially more restrictive, taken as a whole, with respect to consensual encumbrances or replacedrestrictions set forth in clauses (a), (b) or (c) of the preceding paragraph than on such encumbrance or restriction prior to such amendment, modification, replacement or refinancing;
(45) customary non-assignment provisions in the case of clause (4) of Section 4.05(a):
(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 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 contracts and licenses entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(56) with respect to a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock ofor assets of a Restricted Subsidiary that restricts distributions, loans or property and assets of, such transfers by that Restricted Subsidiary; orSubsidiary pending the sale or other disposition;
(67) Permitted Refinancing Indebtedness; provided that the restrictions contained in the terms agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of any Indebtedness or any agreement pursuant to which the Company’s Board of Directors, not materially more restrictive, taken as a whole, with respect such Indebtedness was issued if:
(A) the consensual encumbrance or restriction either: set forth in clauses (ia), (b) applies only or (c) of the preceding paragraph than those contained in the event agreements governing the Indebtedness being refinanced, extended, renewed, refunded, refinanced, replaced, defeased or discharged;
(8) Liens permitted to be incurred under the provisions of Section 4.18 that limit the right of the debtor to dispose of the assets subject to such Liens;
(9) provisions in joint venture agreements, asset sale agreements, limited liability company organizational documents, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) other Indebtedness or Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.12; provided that such restrictions, taken as a payment default or non-compliance whole, are, in the good faith judgment of the Company’s Board of Directors, no more materially restrictive, taken as a whole, with respect to a financial covenant contained consensual encumbrances or restrictions set forth in such Indebtedness or agreement; clauses (a), (b) or (iic) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes preceding paragraph, than is those customary in comparable financings (as reasonably determined by the Company’s Board of Directors);
(12) encumbrances on property that exist at the time the property was acquired by the Company or a Restricted Subsidiary; and
(C13) the Company determines contractual encumbrances or restrictions in effect on the date Issue Date, and any amendments, restatements, modifications, supplements, renewals, extensions, refundings, replacements or refinancings of those agreements; provided that the Incurrence amendments, restatements, modifications, supplements, renewals, extensions, refundings, replacements or refinancings are not, in the good faith judgment of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability Board of Directors, materially more restrictive, taken as a whole, with respect to make principal consensual encumbrances or interest payments restrictions set forth in clauses (a), (b) or (c) of the preceding paragraph than those contained in those agreements on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIssue Date.
Appears in 1 contract
Sources: Indenture (Sterling Chemicals Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall Except as provided in Section 4.07(b), the Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Parent Guarantor or any other Restricted Subsidiary;
(2ii) pay any Indebtedness or other obligation owed to the Company Parent Guarantor or any other Restricted Subsidiary;
(3iii) make loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary; or
(4iv) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aSection 4.07(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Date or any other in agreements as in effect on the Closing Exchange Date, or in the Notes, the Parent Guarantee, the Subsidiary Guarantees, this Indenture, the Shared Security Documents, the First Ranking Facility or any security documents with respect to the Non-Shared Collateral, each as of the Exchange Date, and any amendments, extensions, refinancings, renewals or replacements of such any of the foregoing agreements; provided, however, provided that the encumbrances and restrictions in any such extensionsamendments, refinancingsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, are no less favorable more restrictive 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;
(2ii) existing under or by reason of applicable law law, rule, regulation, license, concession, approval decree or required order issued by any regulatory authority having jurisdiction over the Company government or any Restricted Subsidiaryagency thereof;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by the Company Parent Guarantor 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 than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, are no less favorable more restrictive 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;
(4iv) that otherwise would be prohibited by the provision described in Section 4.07(a)(iv) if they arise, or are agreed to in the case ordinary course of clause (4) of Section 4.05(a):
business and, that (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;
(B) existing exist by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of the Company Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
Indenture or (C) arising or agreed to in the ordinary course of business, do not relating relate to any Indebtedness, and that do not, individually or in the aggregate, reduce detract from the value of property or assets of the Company Parent Guarantor or any Restricted Subsidiary in any manner material to the Company Parent Guarantor or any Restricted Subsidiary;
(5v) 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, such Restricted SubsidiarySubsidiary that is permitted by Section 4.03, Section 4.08 and Section 4.11;
(vi) with respect to the Parent Guarantor or any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into in respect of Indebtedness permitted to be Incurred under Section 4.03 if, as determined in good faith by the Board of Directors, such encumbrances or restrictions (x) are customary for such types of agreements and (y) would not at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payments on the Notes and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii) existing in customary provisions in joint venture agreements and other similar agreements permitted under this Indenture, to the extent such encumbrance or restriction relates to the activities or assets of a party to such joint venture and if, as determined by the Board of Directors, (A) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (B) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make the required payments on the Notes, the Parent Guarantor to fulfill its obligations under the Parent Guarantee or the Subsidiary Guarantors to fulfill their obligations under the applicable Subsidiary Guarantees; or
(6ix) customary provisions contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only agreements evidencing Liens incurred in the event of a payment default or non-compliance accordance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSection 4.05.
Appears in 1 contract
Sources: Indenture (Enrestechnology 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than a Receivables Subsidiary) to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to the 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 Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted SubsidiarySubsidiary (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 shall not be deemed a restriction on the ability to make loans or advances); or
(43) repay any Indebtedness owed to the Company or any other Restricted Subsidiary or transfer any of its property or assets to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clauses (1) or (2) above or in this clause (3)).
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in the Credit Agreement, the Indenture, the Existing Note Indentures or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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 or required by any regulatory authority having jurisdiction over the Company applicable rule, regulation or any Restricted Subsidiaryorder;
(3) that are customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized Lease Obligations that impose restrictions on the property purchased or leased;
(5) 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 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, acquired and any extensions, refinancings, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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;
(46) in the case of clause (43) of the first paragraph of this Section 4.05(a):4.08:
(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 Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this the Indenture; or,
(C) arising or agreed to in the ordinary normal course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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
(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;
(57) 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, such Restricted Subsidiary; or;
(6) 8) relating to a Subsidiary Guarantor and contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 CompanyCompany in good faith); and
(CB) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s ability to make principal or interest payments on the Notes;
(9) arising from customary provisions in joint venture agreements and other similar agreements;
(10) existing in the documentation governing any Permitted Securitization or Permitted Factoring Program;
(11) contained in any agreement governing Indebtedness permitted under (A) clause (8) of the second paragraph of Section 4.09(a); or (B) Section 4.09; provided that with respect to this sub-clause (B), such encumbrances and 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 by the chief financial officer of the Company);.
(12) existing under or by reason of any Investment not prohibited by the Section 4.07 and any Permitted Investment; or
(13) of the type referred to in the first paragraph of this covenant imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (12) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuers, not materially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. Nothing contained in this Section 4.05 4.08 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 4.12 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in the Initial Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) arising pursuant to the Credit Agreement;
(4) 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 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, acquired and any extensions, refinancings, renewals or replacements of such encumbrances or restrictions; providedthereof, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any and material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(45) in the case of clause (4iv) of Section 4.05(a):
(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 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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;
(56) 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, such Restricted Subsidiary; or
(67) relating to a Subsidiary Guarantor and contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 CompanyCompany in good faith); , and
(CB) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s ability to make principal or interest payments on the Notes. .
(c) Nothing contained in this Section 4.05 shall prevent the Company company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in by Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, will not and shall will not permit any Restricted Subsidiary toto directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any the Capital Stock of such the Restricted Subsidiary owned by the Company to the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness 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 properties or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any apply to encumbrances or restrictions:
(1i) existing under or by reason of applicable law or governmental rule, regulation or order;
(ii) existing with respect to any Person, or on any property or assets acquired from a Person which is acquired by or merged with or into the Company or any Restricted Subsidiary, or by reason of any Liens on the Closing Date property or assets, or relating to the Indebtedness, of any Person or other agreements entity existing at the time such Person or other entity becomes a Restricted Subsidiary, or restriction relating to Indebtedness of any such Person and, in effect on the Closing Dateany such case, is not created as a result of or in connection with or in anticipation of any such transaction; provided that such Liens and any extensions, refinancingsrenewals, renewals replacements or replacements of such agreementsrefinancing thereof may not extend to any other property owned by the Company or any Restricted Subsidiary; provided, however, provided further that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2iii) existing under or by reason of applicable law or required by on any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(3) existing with respect to any Person or the property or assets existing at the time of acquisition thereof and which are not created as a result of or in connection with or in anticipation of such Person acquired acquisition; provided that such encumbrances and restrictions and any extensions, renewals, replacements or refinancing thereof may not extend to any other property owned by the Company 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 than such Person or the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, provided further that the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) in the case of clause (4) of Section 4.05(a):above:
(Aa) 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 exist 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;
(b) that restrict 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 such lease, license or other contract or contractual right; or
(Cc) arising or agreed to imposed by Purchase Money Indebtedness for property acquired in the ordinary course of businessbusiness or by Capitalized Lease Obligations permitted under this Indenture on the property so acquired, not relating but only to the extent that such encumbrances or restrictions restrict the transfer of the property;
(v) imposed by the standard loan documentation in connection with loans from (i) Banco Nacional de Desenvolvimento Econômico e Social—BNDES (including loans from Financiadora de Estudos e Projetos— FINEP) or any other Brazilian or Argentine governmental development bank (including, without limitation, Fundo de Desenvolvimento do Centro Oeste – FDCO), credit agency or other entity, or (ii) the International Finance Corporation or any other international or multilateral development bank, government sponsored agency, export-import bank or official export-import credit insurer to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets Restricted Subsidiary;
(vi) imposed by any agreement governing Indebtedness of the Company or any Restricted Subsidiary that is permitted to be Incurred by the covenant described under Section 4.03; provided that the encumbrance or restriction is customary in any manner material comparable financings and will not materially affect the Company’s ability to pay interest or principal, when due, on the Company or any Restricted SubsidiaryNotes;
(5vii) existing by reason of Liens that secure Indebtedness otherwise permitted to be incurred under the provisions of the covenant described under Section 4.09 above and that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) imposed 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, of such Restricted SubsidiarySubsidiary pending the closing of such sale or disposition;
(ix) with respect to a Restricted Subsidiary and imposed pursuant to a customary provision in a joint venture or other similar agreement with respect to such Restricted Subsidiary that was entered into in the ordinary course of business;
(x) required pursuant to this Indenture; or
(6xi) contained existing on the Issue Date and any amendments, extensions, renewals, replacements or refinancing thereof; provided that the encumbrances and restrictions in the terms of extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with material respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance encumbrances or restriction would not be expected to materially impair the Company’s ability to make principal restrictions being extended, renewed, replaced or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesrefinanced.
Appears in 1 contract
Sources: Indenture (Adecoagro S.A.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall notNeither FelCor LP nor FelCor shall, and neither FelCor LP nor FelCor shall not permit any of their respective Restricted Subsidiary Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company FelCor LP or FelCor or any other of their respective Restricted Subsidiary;Subsidiaries,
(2ii) pay any Indebtedness owed to the Company FelCor LP, FelCor or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company FelCor LP, FelCor or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company FelCor LP, FelCor or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or as set forth in this Indenture and any other agreements agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company FelCor LP, FelCor 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 than such Person or the property or assets of such Person so acquired, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):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) 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 FelCor LP, FelCor 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, reduce detract from the value of property or assets of the Company FelCor LP, FelCor or any Restricted Subsidiary in any manner material to the Company or any FelCor LP, FelCor and their respective Restricted SubsidiarySubsidiaries taken as a whole;
(5) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 CompanyFelCor LP and FelCor); , and
(CB) the Company each of FelCor LP and FelCor determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair the Company’s affect such Persons' ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company FelCor LP, FelCor or any Restricted Subsidiary from: :
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or 4.09, or
(2) restricting the sale or other disposition of property or assets of the Company FelCor LP or FelCor or any of its their respective Restricted Subsidiaries that secure Indebtedness of the Company FelCor LP, FelCor or any of its their respective Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (FelCor Lodging Trust 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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt 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.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in the Credit Agreement, the Indenture or any other agreements in effect on the Closing Issue Date, and any amendments, modifications, extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe amendment, refinancingsmodification, renewals extension, renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) of the type described in clause (a)(4) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(Bii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right (including any asset sale or stock sale agreement) 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.10;
(6) contained in the terms of any Indebtedness or any agreement required pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit AgreementIndenture;
(B7) 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) 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 instrument governing any Debt 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 is not materially more disadvantageous applicable to any Person, or the Holders properties or assets of any Person, other than the Person who became a Restricted Subsidiary, or the property or assets of the Notes than is Person 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 the Indenture;
(10) consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(11) existing pursuant to provisions in comparable financings 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; provided that (i) such provisions are customary for instruments of such type (as determined in good faith by the Company); and
’s Board of Directors) and (Cii) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair 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 or and interest payments on the Notes. Nothing ;
(12) existing pursuant to purchase money obligations for property acquired in the ordinary course of business and Capital Lease obligations that impose restrictions of the nature discussed in Section 4.07(a)(4) on the property so acquired;
(13) restrictions or conditions contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creatingtrading, incurringnetting, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale operating, construction, service, supply, purchase or other disposition of property or assets of agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of its the Company or such Restricted SubsidiariesSubsidiary or the assets or property of any other Restricted Subsidiary; and
(14) any encumbrances or restrictions of the type referred to in paragraph (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 (1) through (13) 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. 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 Company or a Restricted Subsidiary of the Company to other Debt 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 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in the Credit Agreement, the indenture for the 7% Senior Notes due 2003, this Indenture or any other agreements in effect on the Closing Date, and any amendments, modifications, restatements, supplements, refundings, extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, supplements, refundings, extensions, refinancings, renewals or replacements taken as a whole 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 amended, modified, restated, supplemented, refunded, extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any applicable rule, regulation or order of, or arrangement with, any regulatory authority having jurisdiction over the Company body or any Restricted Subsidiaryagency;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, under agreements 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, acquired and any amendments, modifications, restatements, supplements, refundings, extensions, refinancings, renewals or replacements of such encumbrances or restrictionsagreements; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, supplements, refundings, extensions, refinancings, renewals or replacements taken as a whole 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 amended, modified, restated, supplemented, refunded, extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of the first paragraph of this Section 4.05(a):4.05:
(A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is, or is subject to, a lease, license, right, conveyance or contract or similar property or asset;, including, without limitation, customary non-assignment provisions in leases, purchase money obligations and other similar agreements, in each case with respect to the property or assets subject thereto,
(B) existing by virtue of any sale, disposition, transfer of, agreement to sell, dispose or 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 Indebtedness, and that do not, individually or in the aggregate, reduce 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
(D) restrictions on cash or deposits required by insurance companies or health maintenance organizations under contracts entered into in the ordinary course of business;
(5) 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, such Restricted Subsidiary;
(6) imposed by customary provisions in joint venture agreements and similar agreements that restrict the transfer of the interest in the joint venture; or
(67) with respect to a Subsidiary Guarantor, contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) if 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) and the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Date or any other agreements in effect on the Closing Date, and any 53 44 extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
; (5v) 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, such Restricted Subsidiary during the period between the execution of such agreement and the closing thereunder within three months of such execution; (vi) with respect to Restricted Subsidiaries in which, on and subsequent to the Closing Date, the Company and other 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 Securities; provided that such encumbrances and restrictions expressly allow the payment of interest and principal on such promissory notes; (vii) encumbrances or restrictions solely of the type referred to in clause (iii) or (iv) of the preceding paragraph that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of Common Stock of a Restricted Subsidiary; or
provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiaries and affiliates thereof (6including the Company and its Restricted Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction with a Person that is not such an affiliate; or (viii) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Securities than is customary in comparable financings (as determined by the Company); and
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the NotesSecurities. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Except as provided in Section 4.09(b), the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a4.09(a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in agreements governing the U.S. Credit Facility, the Iceland Credit Facility, this Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person Person, or with respect to any property or assets, at the time the Person, property or assets of such Person are acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (y) were not put in place in anticipation of such Person so acquired, event; and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances any of the foregoing, or restrictions; providedof any subsequent extension, howeverrenewal, that replacement or refinancing thereof, provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) in the case of clause (4iv) of the type described in Section 4.05(a):4.09(a)(iv) arising or agreed to
(A) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance or contract or similar property or asset;,
(B) existing with respect to any assets comprising a Permitted Business in which the Company or any Restricted Subsidiary has ownership of an undivided interest, pursuant to the agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restrictions are consistent with the Company’s past practice, or
(C) by virtue of any transfer ofPermitted Lien on, or agreement to transfer, option or similar 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, of or property and assets ofof the Restricted Subsidiary that is permitted by this Indenture;
(vi) on the ability of Restricted Subsidiaries to consummate transactions of the type described in Sections 4.09(a)(i), (ii), (iii) or (iv) provided for by any credit agreement or security document relating to Debt permitted to be incurred under this Indenture; provided that such Restricted Subsidiaryrestrictions are not more restrictive than the restrictions contained in this Indenture or the U.S. Credit Facility;
(vii) required pursuant to Section 4.06(b)(ii);
(viii) imposed on any Joint Venture pursuant to customary limitations contained in the constituent documents and agreements governing such Joint Venture; or
(6ix) contained in the terms of existing under any Indebtedness credit agreement or any agreement security document relating to Debt incurred pursuant to which Sections 4.06(b)(ii), (b)(xi) or (b)(xii) or Permitted Refinancing Debt in respect thereof; provided that (a) such Indebtedness was issued if:
restrictions apply only to the Persons Incurring such Debt (Aincluding Guarantees thereof) the encumbrance or restriction either: and their Subsidiaries, (ib) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction Debt is not materially more disadvantageous to Guaranteed by the Holders Company (except as permitted thereby) and (c) as determined in good faith by the Board of Directors of the Notes than is customary in comparable financings (as determined by Company, such encumbrances and restrictions would not, at the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not time agreed to, be expected to materially impair adversely affect the Company’s ability of the Company to make principal or interest payments on the Notes. Nothing contained in .
(c) For purposes of determining compliance with this Section 4.05 shall prevent Section 4.09, the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Debt incurred by the Company or any such Restricted Subsidiary from: (1) creating, incurring, assuming shall not be deemed to encumber or suffering restrict the ability to exist pay any Liens otherwise permitted in Section 4.09 or (2) restricting the sale Debt or other disposition of property obligation owed to, or assets of to make loans and advances to, the Company or any of its a Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesSubsidiary.
Appears in 1 contract
Sources: Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall On and after the Escrow Release Date, the Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create directly or otherwise indirectly, cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary Interests owned by the Company Issuer or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary;
, (3ii) make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a) shall . However, the preceding restrictions will not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply to the Holders than those following 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 of:
(a) any encumbrance or required restriction in existence on the Escrow Release Date, including pursuant to the Credit Agreement or by any regulatory authority having jurisdiction over other agreement or documents entered into in connection with the Company Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings, of any Restricted Subsidiaryof the foregoing agreements or documents, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Issuer, are not materially more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Escrow Release Date or refinancings thereof;
(3b) existing any encumbrance or restriction pursuant to an agreement relating to an acquisition of property, so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(c) any encumbrance or restriction which exists with respect to any a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the property Issuer on or assets after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person acquired by the Company or any becoming a Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are 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 becoming a Restricted Subsidiary;
(d) any instrument governing Debt or Capital Interests of a Person acquired by the Issuer or any of the Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Debt or Capital Interests was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be Incurred;
(e) any encumbrance or restriction under this Indenture, the Notes and any extensionsNote Guarantees;
(f) any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, renewals refunding, replacement, refinancing or replacements extension of such encumbrances Debt issued pursuant to an agreement containing any encumbrance or restrictions; providedrestriction referred to in the foregoing clauses (b) through (e), however, that so long as the encumbrances and restrictions contained in any such extensionsrenewal, renewals refunding, replacement, refinancing or replacements extension agreement are no less favorable in any material respect to the Holders than those the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or restrictions that are then extended in effect and that are being extended, renewed or replacedthe good faith judgment of the Issuer;
(4g) in the case of clause (4) of Section 4.05(a):
(A) that restrict in a customary manner the subletting, provisions restricting subletting or 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 tocontract, or Lien on, any property or assets license of the Company Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture; oror provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(Ch) arising any encumbrance or agreed restriction by reason of applicable law, rule, regulation, order, license, permit or similar restriction;
(i) any encumbrance or restriction under the sale of assets 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;
(j) restrictions on cash and other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(k) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(l) purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of businessbusiness that impose restrictions on that property so acquired of the nature described in clause (iii) of the first paragraph of this Section 4.8;
(m) Liens securing Debt otherwise permitted to be Incurred under this Indenture, not relating including pursuant to Section 4.12, that limit the right of the debtor to dispose of the assets subject to such Liens;
(n) any Indebtedness, Non-Recourse Receivable Subsidiary Indebtedness or other contractual requirements of a Receivable Subsidiary that is a Restricted Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the receivables and that do not, individually or related assets described in the aggregate, reduce definition of Qualified Receivables Transaction which are subject to such Qualified Receivables Transaction;
(o) any other agreement governing Debt entered into after the value of property or assets of the Company or Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in any manner material to effect on the Company or any Restricted Subsidiary;
(5) Issue Date with respect to a that Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for agreements in effect on the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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)Issue Date; and
(Cp) the Company determines on the date of the Incurrence existing under any agreement relating to Debt Incurred by non-Guarantor Subsidiaries permitted to be Incurred pursuant to Section 4.9 and Refinancing Debt in respect thereof; provided that such restrictions are customary for a financing of such Indebtedness that any type and apply only to the Persons Incurring such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the NotesDebt (including Guarantees thereof) and their Subsidiaries. Nothing contained in this Section 4.05 4.8 shall prevent the Company Issuer or any Restricted Subsidiary from: from (1i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 4.12 or (2ii) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Company Issuer or any of its Restricted SubsidiariesSubsidiaries Incurred in accordance with Section 4.9 and 4.12 hereof.
Appears in 1 contract
Sources: Indenture (Schulman a 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in this Indenture, the Senior Dollar Notes Indenture, the Senior Euro Notes Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
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, reduce 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;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
if (A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance a default with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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
) and (C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would will not be expected to materially impair affect the Company’s 's ability to make principal or interest payments on the Notes; or
(vii) imposed in connection with a transaction described in clause (f) of the proviso to the definition of "Asset Sale" and 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 encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 hereof or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Viatel Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries 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 Restricted Subsidiary of the Parent to:
(1i) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company Parent or any other of its Restricted SubsidiarySubsidiaries;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3ii) make loans or advances or to pay any Indebtedness or other obligation owed to the Company Parent or any other Restricted SubsidiarySubsidiary of the Parent; or
(4iii) transfer any of its property or assets to the Company Parent or any other Restricted SubsidiarySubsidiary of the Parent.
(b) The provisions of Section 4.05(a4.08(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect apply 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 of:
(i) applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3ii) existing with respect to this Indenture, the Notes and any Person Note Guarantees;
(iii) customary provisions of any contract, lease or the property license restricting assignments, subservicing, subcontracting or assets of such Person acquired by the Company or other transfers;
(iv) any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereofinstrument governing Acquired Indebtedness, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property properties or assets of such the Person so acquired, ;
(v) the Existing Facilities as each exists on the Issue Date and any extensionsamendments, renewals modifications, restatements, renewals, increases, supplements, refundings, replacements or replacements refinancings thereof; provided that any restrictions imposed pursuant to any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary with respect to facilities similar to the Existing Facilities (under the relevant circumstances) and will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes (as determined in good faith by the Company);
(vi) agreements existing on the Issue Date, including the Senior Credit Facility, to the extent and in the manner such agreements are in effect on the Issue Date;
(vii) restrictions on the transfer of assets (other than cash) held in a Restricted Subsidiary of the Parent imposed under any agreement governing Indebtedness incurred in accordance with this Indenture;
(viii) provisions in agreements evidencing Permitted Funding Indebtedness that impose restrictions on the collateral securing such Indebtedness, provide for financial covenants, limitations on affiliate transactions, the transfer of all or substantially all assets, other fundamental changes or other customary limitations which, in each case as determined in good faith by the Company, are customary or will not materially affect the ability of the Company to pay the principal, interest and premium on the Notes;
(ix) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such encumbrances Lien;
(x) restrictions imposed by any agreement to sell assets or restrictions; providedCapital Stock permitted under this Indenture to any Person pending the closing of such sale;
(xi) any agreement or instrument governing Capital Stock of any Person that is acquired;
(xii) the requirements of any Securitization, howeverWarehouse Facility or MSR Facility that are exclusively applicable to any Securitization Entity, that Warehouse Facility Trust, MSR Facility Trust or special purpose Subsidiary of the encumbrances Parent formed in connection therewith;
(xiii) customary provisions in joint venture and restrictions in any such extensions, renewals or replacements are no less favorable in any material respect other similar agreements relating solely to the Holders than those encumbrances assets or the Equity Interests of such joint venture;
(xiv) customary provisions in leases, licenses and other agreements entered into in the ordinary course of business;
(xv) restrictions on cash or other deposits or net worth imposed by customers or other counterparties of the Parent and its Restricted Subsidiaries under contracts entered into in the ordinary course of business;
(xvi) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 4.08(a);
(xvii) restrictions that are then in effect and that are being extended, renewed or replaced;
(4) in the case of clause (4) of Section 4.05(a):
(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 were created by virtue of any transfer of, agreement to transfer, transfer or option or right with respect to, or Lien on, to any property not otherwise prohibited under this Indenture;
(xviii) other Indebtedness, Disqualified Capital Stock or assets Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09; provided that the restrictions will not materially affect the ability of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(C) arising or agreed to in pay the ordinary course of businessprincipal, not relating to any Indebtednessinterest and premium on the Notes, and that do not, individually or in the aggregate, reduce 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) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 in good faith by the Company); and
(Cxix) the Company determines on the date any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Incurrence contracts, instruments or obligations referred to in clauses (ii) through (iv) and (vi) through (xviii) of this Section 4.08(b); provided that such Indebtedness that any such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction would not be expected to materially impair refinancings are, in the good faith judgment of the Company’s ability Board of Directors whose judgment shall be conclusively binding, not materially more restrictive with respect to make principal or interest payments on the Notes. Nothing such dividend and other payment restrictions, taken as a whole, than those contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale dividend or other disposition of property payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesrefinancing.
Appears in 1 contract
Sources: Indenture (Ocwen Financial Corp)
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 Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company or any other Restricted Subsidiary;
(2) Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(32) make loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(43) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(a3.14(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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 replacedapplicable law;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted SubsidiaryIndenture;
(3) existing the Bank Credit Facilities as 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 materially more restrictive 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replacedexistence on the Issue Date;
(4) in the case customary non-assignment provisions of clause (4) of Section 4.05(a):
(A) that restrict in a any contract and customary manner the subletting, provisions restricting 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 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 Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary subletting in any manner material to the Company or lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability 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;
(5) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, 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 or the properties or assets of the Person so acquired;
(6) restrictions with respect to a Restricted Subsidiary and of the Company imposed pursuant to an a binding agreement that which 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; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(7) customary restrictions imposed on the transfer of copyrighted or patented materials or other intellectual property; or
(6) contained in 8) an agreement governing Indebtedness Incurred to Refinance the terms of any Indebtedness issued, assumed or any agreement Incurred pursuant to which such Indebtedness was issued if:
(Aan agreement referred to in Section 3.14(b)(3) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction 5); provided, that such Refinancing agreement is not materially more disadvantageous restrictive with respect to the Holders of the Notes such encumbrances or restrictions than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing those contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: agreement referred to in such clause (13) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries5).
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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
(1i) existing on the Closing Date in the Credit Agreements, this Indenture or any other agreements in effect on the Closing DateDate (and upon consummation of the JSC 50 Transaction, existing on the JSC Transaction Date in the JSC Credit Agreement or any other agreements in effect on the JSC Transaction Date under which JSC or any of its Subsidiaries is a party or any of their assets are bound), and any extensions, refinancings, renewals or replacements of such agreementsany of the foregoing; provided, however, PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no not materially 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;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of Section 4.05(a):
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) 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
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, reduce detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any and its Restricted SubsidiarySubsidiaries taken as a whole;
(5v) 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, such Restricted Subsidiary; or;
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance customary provisions with respect to a financial covenant contained the disposition or distribution of assets or property in such Indebtedness or agreement; or (ii) is contained joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in a Credit Agreementthe ordinary course of business;
(Bvii) any agreement or instrument governing Indebtedness (whether or not outstanding) of any Foreign Subsidiary of the encumbrance Company permitted to be incurred pursuant to clause (x) under SECTION 4.03 so long as (1) such agreement or restriction instrument is not materially applicable to any Person or the property or assets of any Person other than such Foreign Subsidiary or the property or assets of such Foreign Subsidiary and its Foreign Subsidiaries and (2) not more disadvantageous to than 20% of such Foreign Subsidiary's assets are located in the Holders of the Notes than is customary in comparable financings (as determined by the Company)United States; and
(Cviii) the Company determines on the date any restriction in any agreement or instrument of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notesa Receivables Subsidiary governing a Qualified Securitization Transaction. Nothing contained in this Section SECTION 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section by SECTION 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Stone Container 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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt 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.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing (a) on the Closing Issue Date in the Indenture or any other agreements in effect on the Closing Issue Date, or (b) existing on the Completion Date in the Credit Agreement or any other agreement relating to the Transactions (in each case on the terms described in the Offering Circular), and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law law, rule, regulation or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiaryorder;
(3) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4) of the type described in clause (a)(4) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, lease or license, conveyance (ii) are contained in agreements related to the license of copyrighted or contract patented materials or similar other intellectual property or asset;
(Biii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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) 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 4.12;
(6) encumbrances or restrictions that are customary provisions in joint venture agreements, asset sale agreements, stock sale agreements, sale leaseback agreements or other similar arrangements with respect to the disposition or distribution of assets or property subject to such agreements;
(7) any other agreements governing Debt entered into after the Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted SubsidiarySubsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date;
(8) any restriction with respect to the Company or a Restricted Subsidiary (or any of its property or assets) imposed by customary provisions in Hedging Agreements not entered into for speculative purposes;
(9) existing under, by reason of or with respect to Debt Incurred by any Guarantor permitted to be Incurred under Section 4.06; or
(610) contained in the terms of any Indebtedness or any agreement required pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIndenture.
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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;,
(3iii) make loans or advances to the Company or any other Restricted Subsidiary; , or
(4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1i) existing on the Closing Issue Date in the Credit Agreement, the Indenture, or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, provided that the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3iii) existing existing
(A) with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit is designated or is deemed to become a Restricted Subsidiary, which encumbrances or restrictions (1) are not applicable to any other Person or the property or assets of any other Person other than such Person or the property or assets and (2) were not put in place in anticipation of such Person so acquired, event and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(4iv) of the type described in clause (a)(iv) arising or agreed to in the case ordinary course of clause (4) of Section 4.05(a):
business (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance lease or contract license or similar property or asset;
(B) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(5v) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.13;
(6vi) contained in the terms of governing any Indebtedness or Permitted Refinancing Debt, which terms are, taken as a whole, no less favorable in any agreement material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced, or
(vii) required pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) is contained in a Credit 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIndenture.
Appears in 1 contract
Sources: Note (Neenah Foundry Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The So long as any of the Securities are outstanding, the Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1other than the Guarantor) to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
, (3iii) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (4iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.05(a) shall not restrict any encumbrances or restrictions:
: (1i) existing on the Closing Date herein or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, 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;
; (2ii) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
law; (3iii) 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 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, and any extensions, renewals or replacements of such encumbrances or restrictions; provided, however, that the encumbrances and restrictions in any such extensions, 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, renewed or replaced;
(4iv) in the case of clause (4iv) of the first paragraph of this Section 4.05(a):
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) 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
the 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, reduce 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;
; (5v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all any or substantially all of the Capital Stock of, or property and assets of, such Restricted SubsidiarySubsidiary during the period between the execution of such agreement and the closing thereunder within three months of such execution; or
(6vi) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to Restricted Subsidiaries in which, on and subsequent to the Closing Date, the Company and other Restricted Subsidiaries only make Investments that are evidenced by unsubordinated promissory notes that bear a financial covenant contained in reasonable rate of interest and are payable prior to the Stated Maturity of the Securities; provided that such Indebtedness or agreementencumbrances and restrictions expressly allow the payment of interest and principal on such promissory notes; or (iivii) is encumbrances or restrictions solely of the type referred to in clause (iii) or (iv) of the preceding paragraph that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of Common Stock of a Credit Agreement;
Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiaries and affiliates thereof 52 45 (Bincluding the Company and its Restricted Subsidiaries) the encumbrance or restriction be on fair and reasonable terms no less favorable to such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction with a Person that 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notesan affiliate. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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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 to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness Debt 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.
(b) The provisions of Section 4.05(aparagraph (a) shall do not restrict apply to any encumbrances or restrictions:
(1) existing on the Closing Issue Date in the Credit Agreement, the Indenture or any other agreements in effect on the Closing Issue Date, and any extensions, refinancingsrenewals, renewals replacements or replacements refinancings of such agreementsany of the foregoing; provided, however, that provided the encumbrances and restrictions in any such extensionsthe extension, refinancingsrenewal, renewals replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;existing
(3A) existing with respect to any Person Person, or to the property or assets of such any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, existing or
(B) with respect to any Unrestricted Subsidiary at the time of such acquisition and not incurred in contemplation thereofit 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 other than such Person or the property or assets and (ii) were not put in place in anticipation of such Person so acquiredevent, and any extensions, renewals renewals, replacements or replacements refinancings of such encumbrances or restrictions; providedany of the foregoing, however, that provided the encumbrances and restrictions in any such extensionsthe extension, renewals renewal, replacement or replacements are refinancing are, taken as a whole, no less favorable in any material respect to the Holders Noteholders than those the encumbrances or restrictions that are then in effect and that are being extended, renewed renewed, replaced or replacedrefinanced;
(43) of the type described in clause (a)(4) arising or agreed to in the case ordinary course of clause business (4) of Section 4.05(a):
(Ai) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance license or contract Purchase Money Obligation or similar property or asset;
(Bii) existing by virtue of any transfer ofLien on, or agreement to transfer, option or similar right with respect to, or Lien on, to 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 businessof, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(54) 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, such the Restricted Subsidiary; orSubsidiary that is permitted by Section 4.13;
(65) contained in the terms governing any Debt if (as determined in good faith by the Board of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:Directors)
(A) the encumbrance or restriction either: (i) applies only in the event encumbrances or restrictions are ordinary and customary for a financing of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or that type and (ii) is contained in a Credit Agreement;
the encumbrances or restrictions either (Bx) would not, at 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 on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not time agreed to, be expected to materially impair adversely affect the Company’s ability of the Company to make principal or interest payments on the Notes. Nothing 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 this Section 4.05 shall prevent the Company agreements governing the Debt being refinanced;
(6) existing under or by reason of applicable law or any Restricted Subsidiary from: applicable rule, regulation or order;
(17) creatingexisting under or by reason of joint venture agreements and other similar agreements that prohibit actions of the type described in paragraph (a) above, incurring, assuming which prohibitions are applicable only to the entity or suffering to exist any Liens otherwise permitted in Section 4.09 or assets that are the subject of such arrangements;
(28) (A) restricting the sale on cash or other disposition deposits or net worth imposed by customers or supplied under 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 assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness Subsidiary in 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 respect to the Notes or any of its Restricted Subsidiaries(C) pursuant to Interest Rate Protection Agreements; or
(9) required pursuant to the Indenture.
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Sources: Indenture (J2 Global, 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 to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;,
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;,
(3) make loans or advances to the Company or any other Restricted Subsidiary; Subsidiary or
(4) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.05(aparagraph (a) shall not restrict any encumbrances or restrictions:
(1) existing on in the Closing Date Notes, the Subsidiary Guarantees, the Indenture, the Security Documents, or under any Permitted Priority Secured Indebtedness of the Company or any other agreements in effect on the Closing DateSubsidiary Guarantor or Permitted Priority Subsidiary Guarantee of any Subsidiary Guarantor, and any extensions, refinancings, renewals renewals, supplements, amendments or replacements of such any of the foregoing agreements; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, refinancingsrefinancing, renewals renewal, supplement, amendment or replacements replacement, taken as a whole, 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 renewed, supplemented, amended or replaced;
(2) existing under or by reason of applicable law or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiarylaw;
(3) 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 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, and any extensions, refinancing, renewals or replacements of such encumbrances or restrictionsthereof; provided, however, provided that the encumbrances and restrictions in any such extensionsextension, renewals refinancing, renewal or replacements replacement, taken as a whole, 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 Section 4.05(a):
paragraph (Aa), that (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;
, or (Bii) existing exist 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
the Indenture or (Ciii) arising arise or are agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, reduce 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
(5) 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, such Restricted Subsidiary; or
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (ii) Subsidiary that is contained in a Credit 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 permitted by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating4.06, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries4.11 and Section 4.15.
Appears in 1 contract