Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall not, and shall not permit any Restricted 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 an Issuer or any of its Restricted Subsidiaries; (2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary; (3) make loans or advances to an Issuer or any other Restricted Subsidiary; or (4) transfer its property or assets to an Issuer or any other Restricted Subsidiary. (b) Section 5.13(a) shall not restrict any encumbrances or restrictions: (1) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date; (2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due; (3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisition; (4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements; (5) in the case of Section 5.13(a)(4): (i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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 (iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole; (6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or (7) 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. (c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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 4 contracts
Sources: Twelfth Supplemental Indenture (MPT Operating Partnership, L.P.), Twelfth Supplemental Indenture (MPT Operating Partnership, L.P.), Eleventh Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall not, and shall not permit any Restricted 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 an Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer or any other Restricted Subsidiary.
(b) Section 5.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the U.S. Credit Agreement, the Australian Credit Agreement, the U.K. Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or are not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or;
(7) 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; or
(8) encumbrances or restrictions existing under or by reason of applicable law, regulation, order, approval, license, permit or similar restriction or agreement with governmental authorities with respect to assets located in their jurisdiction.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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 4 contracts
Sources: Nineteenth Supplemental Indenture (MPT Operating Partnership, L.P.), Seventeenth Supplemental Indenture (MPT Operating Partnership, L.P.), Eighteenth Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall not, and shall not permit any Restricted 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 an Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer or any other Restricted Subsidiary.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(44.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; orand
(7) 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.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 3 contracts
Sources: Indenture (MPT Operating Partnership, L.P.), Indenture (Medical Properties Trust, LLC), Indenture (Medical Properties Trust Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall not, and shall not permit any Restricted 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 an Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer or any other Restricted Subsidiary.
(b) Section 5.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the U.S. Credit Agreement, the Australian Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or are not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or;
(7) 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; or
(8) encumbrances or restrictions existing under or by reason of applicable law, regulation, order, approval, license, permit or similar restriction or agreement with governmental authorities with respect to assets located in their jurisdiction.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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 3 contracts
Sources: Fifteenth Supplemental Indenture (MPT Operating Partnership, L.P.), Supplemental Indenture (MPT Operating Partnership, L.P.), Thirteenth Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Company will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock to the Company or any of such Restricted Subsidiary owned by an Issuer its Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3ii) make loans or advances to an Issuer the Company or any other of its Restricted SubsidiarySubsidiaries; or
(4iii) transfer any of its property properties or assets to an Issuer the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(a) shall Notwithstanding the foregoing, the preceding restrictions will not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1i) existing under, by reason of or with respect to this Indenture, agreements governing Existing Indebtedness and the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, date of the Indenture and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings of those agreements, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancing, renewals replacement or replacements refinancings are not materially no more restrictiverestrictive in any material respect, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any such dividend and other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and payment 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 the respective agreements on the date of the Indenture, as determined by the Board of Directors of the Company in their reasonable and will not impair in any material respect good faith judgment;
(ii) the Issuers’ and the Guarantors’ ability to make payments on Indenture, the Notes and Guarantees thereof when duethe Subsidiary Guarantees;
(3iii) existing applicable law;
(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 acquisition (except to the extent such Indebtedness or Capital Stock was incurred 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 the Person, so acquired, provided that, in the case of Indebtedness, such Person acquired Indebtedness was permitted by an Issuer or any Restricted Subsidiary, existing at the time terms of such acquisition and not Incurred the Indenture to be incurred;
(v) customary non-assignment provisions 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are leases entered into in the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements and consistent with respect to such Person or its property or assets as in effect on the date of such acquisitionpast practices;
(4vi) existing underCapital Lease Obligations, by reason of mortgage financings or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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 that property of the property so acquired or covered thereby, or
nature described in clause (iviii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a wholeparagraph (a);
(6vii) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock of, or property and assets of, such a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such its sale or other disposition.;
(cviii) Nothing Permitted Refinancing Indebtedness, provided that the restrictions contained in this the agreements governing such Permitted Refinancing Indebtedness are no more restrictive in any material respect, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 5.13 shall prevent an Issuer 3.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(x) provisions with respect to the disposition or any Restricted Subsidiary from restricting distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements, provided that such restrictions apply only to the sale assets or property subject to such joint venture or similar agreement or to the assets or property being sold, as the case may be; and
(xi) restrictions on cash or other disposition deposits or net worth imposed by customers under contracts entered into in the ordinary course of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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 advancesbusiness.
Appears in 2 contracts
Sources: Indenture (Northwest Pipeline Corp), Indenture (Williams Companies Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers Parent shall not, and shall not permit any of its Restricted 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 an Issuer the Parent or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer the Parent or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer the Parent or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer the Parent or any other Restricted Subsidiary.
(b) Section 5.13(a10.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Closing Date as in effect on the Issue Closing Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Closing Date;
(2) existing under, by reason of or with respect to any other Indebtedness Credit Facility of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness Credit Facility are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair the Credit Agreement (with respect to other credit agreements) or this Indenture (with respect to other indentures), in any material respect the Issuers’ and the Guarantors’ ability to make payments each case as in effect on the Notes and Guarantees thereof when dueClosing Date;
(3) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(4) existing with respect to any Person or the property or assets of such Person acquired by an Issuer the Parent 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisition;
(45) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(56) in the case of Section 5.13(a)(410.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer the Parent or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer the Parent or any Restricted Subsidiary in any manner material to an Issuer the Parent and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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;
(8) existing under, by reason of or with respect to Indebtedness permitted to be incurred pursuant to Section 10.8(d)(14); 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; and
(9) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) 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 good faith judgment of the Parent) and
(iii) the Parent, in its good faith, determines that such an encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes.
(c) Nothing contained in this Section 5.13 10.13 shall prevent an Issuer the Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer the Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.1310.13, (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: Third Supplemental Indenture (Sabra Health Care REIT, Inc.), First Supplemental Indenture (Sabra Health Care REIT, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Except as provided in paragraph (b), Playboy will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock to Playboy or any of such its Restricted Subsidiary owned by an Issuer Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Playboy or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer Playboy or any other of its Restricted SubsidiarySubsidiaries; or
(43) transfer any of its property properties or assets to an Issuer Playboy or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(aClause (a) shall above will not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing under, by reason of Existing Indebtedness or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date agreements as in effect on the Issue Date, date of this Indenture and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings thereof, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancing, renewals replacement or replacements refinancings are not materially more restrictive, taken as a whole, than those contained in such Existing Indebtedness or other agreements, as applicable, as in effect on the Issue Datedate of this Indenture;
(2) existing underthe Credit Agreement as in effect on the date of this Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, than those contained in the Credit Agreement, as in effect on the date of this Indenture;
(3) this Indenture, the Notes, the Note Guarantees and the Security Documents;
(4) applicable law or any rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by reason Playboy or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or with respect in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other Indebtedness than the Person, or the property or assets of the Issuers Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(7) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of the preceding paragraph;
(8) any agreement for the sale or their other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiaries permitted under this Indenture; providedSubsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness, however, provided that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair in any material respect the Issuers’ and agreements governing the Guarantors’ ability to make payments on the Notes and Guarantees thereof when dueIndebtedness being refinanced;
(310) existing any instrument governing Indebtedness of Foreign Restricted Subsidiaries incurred pursuant to Section 4.06(b)(12);
(11) provisions with respect to any Person the disposition or the distribution of assets or property or assets of such Person acquired by an Issuer or any Restricted Subsidiaryin joint venture agreements, existing at the time of such acquisition asset sale agreements, stock sale agreements 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are similar agreements entered into in 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 such Person or its property or assets as in effect on the date of such acquisitionbusiness;
(412) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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 cash or covered thereby, or
(iv) arising other deposits or agreed to net worth imposed by customers under contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(613) Permitted Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(14) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Guarantor which was previously an Unrestricted Subsidiary pursuant to or by reason instrument governing Indebtedness of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiaryany Guarantor; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and and
(15) at any such encumbrance or restriction does not extend to time when any assets or property Hefner Securities of the Issuers or Company are outstanding, any other Restricted Subsidiary other than restr▇▇▇▇▇▇ contained in the assets and property certificate of incorporation of the Company for the benefit of such Subsidiary; or
(7) 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 dispositionsecurities.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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
Sources: Indenture (Playboy Enterprises Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers Parent shall not, and shall not permit any of its Restricted 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 an Issuer the Parent or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer the Parent or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer the Parent or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer the Parent or any other Restricted Subsidiary.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Closing Date as in effect on the Issue Closing Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Closing Date;
(2) existing under, by reason of or with respect to any other Indebtedness Credit Facility of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness Credit Facility are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair the Credit Agreement (with respect to other credit agreements) or this Indenture (with respect to other indentures), in any material respect the Issuers’ and the Guarantors’ ability to make payments each case as in effect on the Notes and Guarantees thereof when dueClosing Date;
(3) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(4) existing with respect to any Person or the property or assets of such Person acquired by an Issuer the Parent 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisition;
(45) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(56) in the case of Section 5.13(a)(44.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer the Parent or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer the Parent or any Restricted Subsidiary in any manner material to an Issuer the Parent and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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;
(8) existing under, by reason of or with respect to Indebtedness permitted to be incurred pursuant to Section 4.08(d)(14); 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; and
(9) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) 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 good faith judgment of the Parent) and
(iii) the Parent, in its good faith, determines that such an encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer the Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer the Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 Issuers shall not, and shall not permit any of their Restricted 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:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries;
(2ii) pay any Indebtedness owed to an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(3iii) make loans or advances to an Issuer or any other of its Restricted SubsidiarySubsidiaries; or
(4iv) transfer its property or assets to an Issuer or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1i) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that in the determination of the Board of Directors of 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, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement or such other agreements as in effect on the Issue Date;
(2ii) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have Board of Directors of Parent has 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by an Issuer or any of its Restricted SubsidiarySubsidiaries, 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisitionacquisition as determined by such Person in good faith (which determination will be conclusive and binding absent manifest error);
(4iv) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5v) existing under, by reason of or with respect to, this Indenture, the Notes or any Guaranty;
(vi) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(vii) Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) in the case of Section 5.13(a)(44.13(a)(iv):
(i1) 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,
(ii2) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any of its Restricted Subsidiary not otherwise prohibited by this Indenture,
(iii3) 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
(iv4) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer Parent or any of its Restricted Subsidiary Subsidiaries in any manner material to an Issuer Parent and its Restricted Subsidiaries taken as a whole;
(6ix) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Subsidiary Guarantor which 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 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; or;
(7x) 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;
(xi) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(xii) on cash or other deposits (1) imposed by persons under contracts entered into in the ordinary course of business or for whose benefit such cash or deposit exists, (2) or in connection with net worth requirements imposed by customers under contracts entered into in the ordinary course of business or (3) that arise in connection with Permitted Investments;
(xiii) 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; and
(xiv) any encumbrance or restriction of the type referred to in Section 4.13(a)(i) through (iv) imposed by any extensions, refinancings, renewals or replacements of the contracts, instruments or obligations referred to in clauses (i) through (xiv) of this Section 4.13(b); provided, that the encumbrances and restrictions in any such extensions, refinancings renewals or replacements are no less favorable in any material respect, taken as a whole, to the holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 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 Issuers shall not, and shall not permit any of their Restricted 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:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries;
(2ii) pay any Indebtedness owed to an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(3iii) make loans or advances to an Issuer or any other of its Restricted SubsidiarySubsidiaries; or
(4iv) transfer its property or assets to an Issuer or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1i) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that in the determination of the Board of Directors of 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, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement or such other agreements as in effect on the Issue Date;
(2ii) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have Board of Directors of Parent has 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by an Issuer or any of its Restricted SubsidiarySubsidiaries, 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisitionacquisition as determined by such Person in good faith (which determination will be conclusive and binding absent manifest error);
(4iv) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5v) existing under, by reason of or with respect to, this Indenture, the Notes or each Guaranty;
(vi) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(vii) Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) in the case of Section 5.13(a)(44.13(a)(iv):
(i1) 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,
(ii2) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any of its Restricted Subsidiary not otherwise prohibited by this Indenture,
(iii3) 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
(iv4) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer Parent or any of its Restricted Subsidiary Subsidiaries in any manner material to an Issuer Parent and its Restricted Subsidiaries taken as a whole;
(6ix) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Subsidiary Guarantor which 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 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; or;
(7x) 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;
(xi) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(xii) on cash or other deposits (1) imposed by persons under contracts entered into in the ordinary course of business or for whose benefit such cash or deposit exists, (2) or in connection with net worth requirements imposed by customers under contracts entered into in the ordinary course of business or (3) that arise in connection with Permitted Investments;
(xiii) 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; and
(xiv) any encumbrance or restriction of the type referred to in Section 4.13(a)(i) through (iv) imposed by any extensions, refinancings, renewals or replacements of the contracts, instruments or obligations referred to in clauses (i) through (xiv) of this Section 4.13(b); provided, that the encumbrances and restrictions in any such extensions, refinancings renewals or replacements are no less favorable in any material respect, taken as a whole, to the holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 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 Issuers Parent shall not, and shall not permit any of its Restricted 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 an Issuer the Parent or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer the Parent or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer the Parent or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer the Parent or any other Restricted Subsidiary.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the Notes, the Guaranties, the Credit Agreement Agreement, the Acquisition Line, the Term Loan and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictiveless favorable, taken as a whole, to the Holders of the Notes than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness Credit Facility of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness Credit Facility are not materially more restrictiveless favorable, taken as a whole, to the Holders of the Notes than those contained in customary comparable financings and will not impair any of the Credit Agreement, the Acquisition Line or the Term Loan (with respect to other credit agreements) or this Indenture (with respect to other indentures), in any material respect the Issuers’ and the Guarantors’ ability to make payments each case as in effect on the Notes and Guarantees thereof when dueIssue Date;
(3) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(4) existing with respect to any Person or the property or assets of such Person acquired by an Issuer the Parent 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or not materially more restrictiveless favorable, taken as a whole, to the Holders of the Notes than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition;
(45) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreementsagreements to the extent they are limited in application to the Restricted Subsidiary party to such agreement;
(56) in the case of Section 5.13(a)(44.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer the Parent or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer the Parent or any Restricted Subsidiary in any manner material to an Issuer the Parent and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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;
(8) existing under, by reason of or with respect to Indebtedness permitted to be incurred pursuant to Section 4.08(d)(14); provided that the encumbrances and restrictions contained in the agreements governing such Indebtedness are not materially less favorable, taken as a whole, to the Holders of the Notes than those contained in the agreements governing the Indebtedness being refinanced; and
(9) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially less favorable, taken as a whole, to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Parent) and
(iii) the Parent, in its good faith, determines that such an encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer the Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer the Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 Issuers shall Company will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted on its Equity Interests owned by applicable law on the Company or any Capital Stock of such Restricted Subsidiary owned by an Issuer or pay any Debt or other obligation owed to the Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
, (3ii) make loans or advances to an Issuer the Company or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to an Issuer the Company or any other Restricted Subsidiary.
(b) Section 5.13(a) shall . However, the preceding restrictions will not restrict any apply to the following encumbrances or restrictionsrestrictions existing under or by reason of:
(1a) existing under, by reason of any encumbrance or with respect to this Indenture, the Credit Agreement and any other agreement restriction in effect on the Issue Date as in effect existence on the Issue Date, and including those required by the Credit Agreement or any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of future Debt incurred in compliance with the Credit Agreement (so long as such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2Credit Agreement) existing underand any amendments, by reason of modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; providedextensions thereof, however, provided that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or agreements governing the other Indebtedness extensions are not materially no more restrictive, taken as a whole, as determined in good faith by the Company, with respect to such dividend or other payment restrictions than those contained in customary comparable financings and will not impair in any material respect the Issuers’ and the Guarantors’ ability to make payments these agreements on the Notes and Guarantees thereof when dueIssue 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 after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or the property or assets in anticipation of such Person acquired by an Issuer 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 becoming a Restricted Subsidiary;
(d) any encumbrance or restriction pursuant to an agreement effecting a permitted amendment, modification, restatement, renewal, increase, supplement, refunding, replacement, refinancing or extension of Debt issued pursuant to an agreement containing any encumbrance or restriction referred to in the property or assets of such Person foregoing clauses (a) through (c), so acquired and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that long as the encumbrances and restrictions contained in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements refinancing agreement are entered into in the ordinary course of business or not materially no more restrictive, taken as a whole, as determined in good faith by the Company, than those the encumbrances and restrictions contained in the instruments agreements governing the Debt being amended, modified, restated, renewed, increased, supplemented, refunded, replaced, refinanced or agreements with respect to such Person or its property or assets as in effect on the date of such acquisitionextended;
(4e) existing under, by reason of customary provisions restricting subletting or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a subject to any lease, license, conveyance or contract or similar property or asset,
(ii) 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 an Issuer the Company or any Restricted Subsidiary or provisions in agreements that restrict the assignment or transfer of such agreement or any rights thereunder;
(f) any restriction on the sale or other disposition of assets or property securing Debt as a result of a Permitted Lien on such assets or property;
(g) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(h) any encumbrance or restriction under this Indenture, the Notes and the Note Guarantees;
(i) restrictions on cash and other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(j) customary provisions with respect to the disposition or distribution of assets or property in joint ventures pursuant to asset sale agreements, joint venture agreements, stock sale agreements and other similar agreements;
(k) any instrument governing Debt or Equity 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 Equity Interests were incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person other than the Person so acquired;
(l) Liens securing Debt not otherwise prohibited by this Indenture,, including pursuant to Section 4.12, that limit the right of the debtor to dispose of the assets subject to such Liens;
(iiim) existing undercustomary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements not otherwise prohibited by reason this Indenture, which limitation is applicable only to the assets (including Equity Interests of Subsidiaries) that are the subject of such agreements;
(n) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(o) customary arrangements entered into or incurred by and relating exclusively to a Receivables Subsidiary in connection with respect a Qualified Receivables Transaction that, in the good faith determination of the Company’s Board of Directors, is reasonably necessary to effect such qualified Receivables Transaction;
(1p) (i) purchase money obligations for property acquired in the ordinary course of business or and (2ii) capital leases or operating leases Capital Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on that property of the property so acquired or covered thereby, or
nature described in clause (iviii) arising or agreed to in of the ordinary course first paragraph of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a wholethis Section 4.8;
(6q) provisions in charters, bylaws or similar governing documents of any special purpose finance subsidiary or joint venture entity as in effect on the Issue Date or that are reasonably customary for comparable entities engaged in comparable activities otherwise permitted under this Indenture; and
(r) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Guarantor which was previously an Unrestricted Subsidiary pursuant to or by reason customary provisions restricting dispositions 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 real property interests set forth in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property reciprocal easement agreements of the Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary; or
(7) 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.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer Company or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness impose restrictions of the Issuers or any nature described in clause (iii) of their Restricted Subsidiaries. For purposes the first paragraph of determining compliance with this Section 5.13, (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 advances4.8.
Appears in 1 contract
Sources: Indenture (Louisiana-Pacific Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Parent will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted on its Capital Interests owned by applicable law on the Parent or any Capital Stock of such Restricted Subsidiary owned by an Issuer or pay any Debt or other obligation owed to the Parent or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
, (3ii) make loans or advances to an Issuer the Parent or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to an Issuer the Parent or any other Restricted Subsidiary.
(b) Section 5.13(a) shall However, the preceding restrictions will not restrict any apply to the following encumbrances or restrictionsrestrictions existing under or by reason of:
(1i) existing under, by reason of any encumbrance or with respect to this Indenture, the Credit Agreement and any other agreement restriction in effect on the Issue Date as in effect existence on the Issue Date, including those required by the ABL Credit Agreement and the Term Loan Credit Agreement and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancing, renewals replacements or replacements of such agreementsrefinancings thereof; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings, renewals or replacements in the good faith judgment of the Parent, are not materially no more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any such dividend or other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and payment 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 material respect the Issuers’ and the Guarantors’ ability to make payments these agreements on the Notes and Guarantees thereof when dueIssue Date or refinancings thereof;
(3ii) 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);
(iii) 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 Parent 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 an Issuer 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 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 (i) through (iii), so acquired and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that long as the encumbrances and restrictions contained in any such amendmentsrefinancing agreement are not materially less favorable, modificationstaken as a whole, restatementsto the Holders than the encumbrances and restrictions contained in the agreements governing the Debt being renewed, extensionsrefunded, increasesreplaced, supplementsrefinanced or extended in the good faith judgment of the Parent;
(v) customary provisions restricting subletting or assignment of any lease, refundingscontract, refinancingor license of the Parent or any Restricted Subsidiary or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(vi) any encumbrance or restriction by reason of applicable law, renewals rule, regulation or replacements are order;
(vii) any encumbrance or restriction under this Indenture, the Notes, the Note Guarantees and the Security Documents;
(viii) any encumbrance or restriction upon 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;
(ix) restrictions on cash and other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements business;
(x) customary provisions with respect to such Person the disposition or its distribution of assets or property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint ventureventure agreements, operating or asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(5xi) any instrument governing Debt or Capital Interests of a Person acquired by the Parent 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 Section 5.13(a)(4):Debt, such Debt was permitted by the terms of this Indenture to be incurred;
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(iii) existing under, by reason of or with respect to (1xii) purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of business or (2) capital leases or operating leases that impose encumbrances or restrictions on the that property so acquired or covered thereby, or
of the nature described in clause (iva)(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a wholethis Section 4.8;
(6xiii) 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;
(xiv) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Guarantor which was previously an Unrestricted Subsidiary pursuant to existing under or by reason of an contractual requirements in connection with a Qualified Receivables Transaction; and
(xv) any other agreement that such Subsidiary is a party to or governing Debt entered into before after the date on which such Subsidiary became a Restricted Subsidiary; provided Issue Date that such agreement was contains encumbrances and restrictions that are 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; or
(7) materially more restrictive with respect to a any Restricted Subsidiary and imposed pursuant than those in effect on the Issue Date with respect 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 pursuant to agreements in effect on the closing of such sale or other disposition.
(c) Issue Date. Nothing contained in this Section 5.13 4.8 shall prevent an Issuer the Parent or any Restricted Subsidiary from (i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.12 or (ii) restricting the sale or other disposition of property or assets of an Issuer the Parent or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Issuers Parent or any of their its Restricted Subsidiaries. For purposes of determining compliance Subsidiaries Incurred in accordance with this Section 5.13, (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 4.9 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 advancesSection 4.12 hereof.
Appears in 1 contract
Sources: Indenture (Bumble Bee Capital Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Company will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on its Capital Interests to the Company or any Capital Stock of such Restricted Subsidiary owned by an Issuer or pay any Debt owed to the Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
, (3ii) make loans or advances to an Issuer the Company or any other Restricted Subsidiary; or
Subsidiary or (4iii) transfer any of its property or assets to an Issuer the Company or any other Restricted Subsidiary.
(b) Section 5.13(a) shall . However, the preceding restrictions will not restrict any apply to the following encumbrances or restrictionsrestrictions existing under or by reason of:
(1a) existing under, by reason of any encumbrance or with respect to this Indenture, the Credit Agreement and any other agreement restriction in effect on the Issue Date as in effect existence on the Issue Date, including those under the Credit Agreement, the Security Documents, the Existing Receivables Facility or the Receivables Purchase Agreement and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancing, renewals replacements or replacements of such agreementsrefinancings thereof; provided, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings, renewals or replacements in the good faith judgment of the Company, are not materially no more restrictiverestrictive in any material respect, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any such dividend or other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness are not materially more restrictive, taken as a wholepayment restrictions, than those contained in customary comparable financings and will not impair in any material respect the Issuers’ and the Guarantors’ ability to make payments these agreements on the Notes and Guarantees thereof when dueIssue Date or refinancings 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 an Issuer 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 amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that long as the encumbrances and restrictions contained in any such amendmentsrefinancing agreement are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in the agreements governing the Debt being renewed, modificationsrefunded, restatementsreplaced, extensionsrefinanced or extended in the good faith judgment of the Company;
(e) customary provisions restricting subletting or assignment of any lease, increasescontract, supplementsor license of the Company or any Restricted Subsidiary 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, refundingsrule, refinancingregulation or order;
(g) any encumbrance or restriction under this Indenture, renewals the Notes and the Note Guarantees;
(h) any encumbrance or replacements are 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 or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements business;
(j) customary provisions with respect to such Person the disposition or its distribution of assets or property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint ventureventure agreements, operating or asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(5k) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(iii) existing under, by reason of or restriction with respect to the Company or a Restricted Subsidiary (1or any of its property or assets) purchase money obligations imposed by customary provisions in Hedging Obligations or Swap Contracts, in each case, not entered into for speculative purposes;
(l) Purchase Money Debt and Capital Lease Obligations permitted under this Indenture for property acquired in the ordinary course of business or (2) capital leases or operating leases that impose encumbrances or restrictions on the that property so acquired or covered thereby, or
of the nature described in clause (iviii) arising or agreed to in of the ordinary course first paragraph of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a wholethis SECTION 4.8;
(6m) 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 encumbrance Non-Recourse Receivable Subsidiary Indebtedness or restriction with respect to other contractual requirements of a Restricted Receivable Subsidiary that is a Guarantor which was previously an Unrestricted Restricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is in connection with a party to or entered into before the date on which such Subsidiary became a Restricted SubsidiaryQualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the receivables and related assets described in the definition of Qualified Receivables Transaction which are subject to such Qualified Receivables Transaction; and
(o) any other agreement was not governing Debt entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary after the Issue Date that contains encumbrances and any such encumbrance or restriction does restrictions that are not extend to any assets or property of the Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary; or
(7) materially more restrictive with respect to a any Restricted Subsidiary and imposed pursuant than those in effect on the Issue Date with respect 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 pursuant to agreements in effect on the closing of such sale or other disposition.
(c) Issue Date. Nothing contained in this Section 5.13 SECTION 4.8 shall prevent an Issuer the Company or any Restricted Subsidiary from (i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under SECTION 4.12 or (ii) restricting the sale or other disposition of property or assets of an Issuer the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Issuers Company or any of their its Restricted Subsidiaries. For purposes of determining compliance Subsidiaries Incurred in accordance with this Section 5.13, (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 SECTION 4.9 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 advancesSECTION 4.12.
Appears in 1 contract
Sources: Indenture (Triumph Group Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Company will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by an Issuer to the Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer or any other Restricted Subsidiary.
(b) Section 5.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers interest or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toparticipation in, or Lien onmeasured by, any property or assets of an Issuer or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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 ofprofits, or property and assets of, such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending pay any Indebtedness owed to the closing of such sale or other disposition.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer Company or any of its Restricted Subsidiaries Subsidiaries; provided that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (1) the priority of any Preferred Stock 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 Stock;
(2) the subordination of make loans or advances made to the Company or any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness as in effect on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that 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;
(ii) the Notes Documents;
(iii) agreements governing Indebtedness incurred in compliance with Section 4.08 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein, taken as a whole, are not materially more restrictive than those contained in the Notes Documents, in each case, as then in effect;
(iv) the agreements governing the Senior Credit Facility and any Indebtedness evidencing Permitted Debt described in clause (15) thereof; provided that the encumbrances or restrictions contained therein, taken as a whole, are, in the good faith judgment of the Board of Directors of the Company, no more materially restrictive with respect to such encumbrances and restrictions than those customary in comparable financings (as determined by the Board of Directors of the Company);
(v) applicable law, rule, regulation or order;
(vi) 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 acquisition (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; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(vii) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;
(viii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph;
(ix) any agreement for the sale or other disposition of a Restricted Subsidiary to other Indebtedness incurred that restricts distributions by such that Restricted Subsidiary shall pending the sale or other disposition;
(x) 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 (as determined in good faith by the Board of Directors of the Company);
(xi) Liens permitted to be deemed a restriction incurred under Section 4.15 that limit the right of the debtor to dispose of the assets subject to such Liens;
(xii) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into (a) in the ordinary course of business or (b) 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; and
(xiii) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ability to make loans or advancesordinary course of business.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Company will not, and shall will not permit any of its Restricted Subsidiaries 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 such Restricted Subsidiary of the Company or the Company to:
(1a) (i) pay dividends or make any other distributions permitted by applicable law to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries that directly or indirectly own any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to an Issuer the Company or any other of its Restricted Subsidiaries that directly or indirectly own any Capital Stock of such Restricted Subsidiary; or
(4c) transfer any of its property properties or assets to an Issuer the Company or any other of its Restricted Subsidiaries that directly or indirectly own any Capital Stock of such Restricted Subsidiary.
(b) Section 5.13(a) shall not restrict any ; except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1i) existing under, by reason of or with respect to this Indenture, the Credit Agreement Existing Indebtedness and any other agreement in effect on the Issue Date as in effect on the Issue Closing Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to dividend and other payment restrictions than those contained in the agreements as in effect on the Closing Date;
(ii) the New Credit Facility as in effect as of the Closing Date, and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings thereof or any other Credit Facility, renewals or replacements of such agreements; provided, however, PROVIDED that the encumbrances and restrictions in any such amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancing, renewals replacement or replacements refinancings or such other Credit Facility are not materially no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the New Credit Facility as in effect on the Issue Closing Date;
(2iii) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when dueAgreement;
(3iv) existing 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 acquisition (except to the extent such Indebtedness was incurred or Capital Stock issued 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 the Person, so acquired, PROVIDED that such Person acquired Indebtedness was permitted by an Issuer or any Restricted Subsidiary, existing at the time terms of such acquisition and not Incurred the Indenture to be incurred;
(v) by reason of customary non-assignment provisions 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are leases entered into in the ordinary course of business;
(vi) purchase money obligations for property acquired in the ordinary course of business or not materially that impose restrictions of the nature described in clause (c) above on the property so acquired;
(vii) Indebtedness of Guarantors, PROVIDED that such Indebtedness was permitted to be incurred pursuant to the Indenture;
(viii) Permitted Refinancing Indebtedness, PROVIDED that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on governing the date of such acquisitionIndebtedness being refinanced;
(4ix) existing under, by reason restrictions imposed on the obligor of or with respect to provisions in joint venture, operating or similar agreementsany Permitted Vehicle Indebtedness;
(5x) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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 any Specified Financing Subsidiary pursuant to the property so acquired or covered thereby, or
(iv) arising or agreed to in terms of the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a wholeCustomer Lease Financing Loans under which it is obligated;
(6xi) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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 the Capital Stock of, or property and assets of, of such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition.;
(cxii) Nothing contained in this Section 5.13 shall prevent an Issuer any restriction or encumbrance consisting of any Restricted Subsidiary from restricting restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Lien permitted to be Incurred under this Agreement on such asset or assets property;
(xiii) customary provisions restricting dispositions of an Issuer real property interests set forth in any reciprocal easement agreements of the Company or any of its Restricted Subsidiary;
(xiv) restrictions on Foreign Subsidiaries that secure pursuant to arrangements governing Indebtedness of such Foreign Subsidiaries permitted pursuant to the Issuers covenant described under Section 6.3 hereof; and
(xv) encumbrances or restrictions arising or existing by reason of applicable law or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13applicable rule, (1) the priority of any Preferred Stock in receiving dividends regulation or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction order, including, without limitation, restrictions on the ability to make distributions on Capital Stock and (2) the subordination payment of loans or advances made to a Restricted Subsidiary to other Indebtedness incurred by such Restricted Subsidiary shall not be deemed a restriction dividends on the ability to make loans Company's insurance Subsidiaries imposed by federal or advancesstate government regulations.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers ESH REIT shall not, and shall not permit any of its Restricted 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 an Issuer ESH REIT or any of its Restricted Subsidiaries;,
(2) pay any Indebtedness owed to an Issuer ESH REIT or any other of its Restricted Subsidiary;Subsidiaries,
(3) make loans or advances to an Issuer ESH REIT or any other of its Restricted Subsidiary; Subsidiaries, or
(4) transfer its property or assets to an Issuer ESH REIT or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to to, this Indenture, the ESH REIT Credit Agreement Facilities and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that in the determination of ESH REIT 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, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those contained in the ESH REIT Credit Facilities or such other agreements, as applicable, as in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have ESH REIT has 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 material respect the Issuers’ ESH REIT’s and the Subsidiary Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer ESH REIT or any of its Restricted SubsidiarySubsidiaries, 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisitionacquisition as determined by ESH REIT in good faith (which determination will be conclusive and binding absent manifest error);
(4) existing under, by reason of or with respect to provisions in joint venture, partnership, 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) existing under or by reason of Permitted Liens;
(8) in the case of Section 5.13(a)(44.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer ESH REIT 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer ESH REIT or any of its Restricted Subsidiary Subsidiaries in any manner material to an Issuer ESH REIT and its Restricted Subsidiaries taken as a whole;
(69) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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 ESH REIT or any other Restricted Subsidiary other than the assets and property of such Subsidiary; or;
(710) 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;
(11) with respect to a Foreign Subsidiary, entered into in the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(12) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(13) 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;
(14) restrictions or conditions 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 assets that are the subject of such agreement, the payment rights thereunder or the proceeds thereof;
(15) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis; and
(16) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (15) of this Section 4.13(b); provided, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer ESH REIT or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer ESH REIT or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers ESH REIT or any of their its Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 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
Sources: Indenture (ESH Hospitality, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall not, and shall not permit any of their Restricted 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:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries;
(2ii) pay any Indebtedness owed to an Issuer or any other of its Restricted SubsidiarySubsidiaries;
(3iii) make loans or advances to an Issuer or any other of its Restricted SubsidiarySubsidiaries; or
(4iv) transfer its property or assets to an Issuer or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1i) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that in the determination of the Board of Directors of 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, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement or such other agreements as in effect on the Issue Date;
(2ii) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have Board of Directors of Parent has 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by an Issuer or any of its Restricted SubsidiarySubsidiaries, 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in 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 such Person or its property or assets as in effect on the date of such acquisitionacquisition as determined by such Person in good faith (which determination will be conclusive and binding absent manifest error);
(4iv) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5v) existing under, by reason of or with respect to, this Indenture, the Notes or the Guaranties;
(vi) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(vii) Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) in the case of Section 5.13(a)(44.13(a)(iv):
(i1) 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,
(ii2) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any of its Restricted Subsidiary not otherwise prohibited by this Indenture,
(iii3) 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
(iv4) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer Parent or any of its Restricted Subsidiary Subsidiaries in any manner material to an Issuer Parent and its Restricted Subsidiaries taken as a whole;
(6ix) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Subsidiary Guarantor which 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 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; or;
(7x) 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;
(xi) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(xii) on cash or other deposits (1) imposed by persons under contracts entered into in the ordinary course of business or for whose benefit such cash or deposit exists, (2) or in connection with net worth requirements imposed by customers under contracts entered into in the ordinary course of business or (3) that arise in connection with Permitted Investments;
(xiii) 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; and
(xiv) any encumbrance or restriction of the type referred to in Section 4.13(a)(i) through (iv) imposed by any extensions, refinancings, renewals or replacements of the contracts, instruments or obligations referred to in clauses (i) through (xiv) of this Section 4.13(b); provided, that the encumbrances and restrictions in any such extensions, refinancings renewals or replacements are no less favorable in any material respect, taken as a whole, to the holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 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 Issuers shall Parent will not, and shall will not permit any of its Restricted Subsidiaries 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 such Restricted Subsidiary of the Parent or the Parent to:
(1i) (x) pay dividends or make any other distributions permitted by applicable law to the Parent or any of its Restricted Subsidiaries (1) on any its Capital Stock of such Restricted Subsidiary owned by an Issuer or (2) with respect to any other interest or participation in, or measured by, its profits, or (y) pay any Indebtedness owed to the Parent or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3ii) make loans or advances to an Issuer the Parent or any other of its Restricted SubsidiarySubsidiaries; or
(4iii) transfer any of its property properties or assets to an Issuer the Parent or any other of its Restricted SubsidiarySubsidiaries.
(b) Section 5.13(a) The foregoing provisions shall not restrict any prohibit encumbrances or restrictionsrestrictions existing under or by reason of:
(1i) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date Existing Indebtedness as in effect on the Issue Date, and any amendments, modifications, restatementssupplements, extensions, increases, supplements, refundings, refinancingrefinancings, renewals or replacements of such agreementsExisting Indebtedness; provided, however, provided that the encumbrances and restrictions in any such amendments, supplements, extensions, refinancings, renewals or replacements are no more restrictive than those encumbrances or restrictions that are then in effect and that are being amended, supplemented, extended, refinanced, renewed or replaced;
(ii) the Senior Credit Facility as in effect as of the Issue Date, and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings thereof and any other Credit Facilities, renewals provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or replacements refinancings and such other Credit Facilities are not materially no more restrictive, taken as a whole, restrictive with respect to such dividend and other payment restrictions than those contained in the Senior Credit Facility as in effect on the Issue Date;
(2iii) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ Indenture and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when dueNotes;
(3iv) existing applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Parent or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was Incurred 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 the Person, so acquired, provided that, in the case of Indebtedness, such Person acquired Indebtedness was permitted by an Issuer or any Restricted Subsidiary, existing at the time terms of such acquisition and not Incurred this Indenture to be Incurred;
(vi) by reason of customary non-assignment provisions 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are leases entered into in the ordinary course of business and consistent with past or not materially then-current practices;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in clause (v) above on the property so acquired;
(viii) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on governing the date of such acquisitionIndebtedness being refinanced;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6ix) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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 Parent (or any other Restricted Subsidiary other than the assets and of its property of such Subsidiary; or
(7or assets) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock of, or property and assets of, of such Restricted Subsidiary (or the property of assets that restricts distributions by that Restricted Subsidiary are subject to such restriction) pending the closing of such sale or other disposition.;
(cx) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale mortgages, pledges or other disposition security agreements permitted under the Indenture securing Indebtedness of property or assets of an Issuer the Parent or any of its Restricted Subsidiaries that secure Indebtedness to the extent such encumbrances or restrictions restrict the transfer of the Issuers property subject to such mortgages, pledges or other security agreements; or
(xi) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent or any of their its Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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 Issuers shall Company will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary of the Company to:
(1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock to the Company or any of such its Restricted Subsidiary owned by an Issuer Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3ii) make loans or advances to an Issuer the Company or any other of its Restricted SubsidiarySubsidiaries; or
(4iii) sell, lease or transfer any of its property properties or assets to an Issuer the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) The restrictions in Section 5.13(a4.11(a) shall will not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1i) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any other agreement agreements governing Existing Indebtedness as in effect on the Issue Date as and agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.08 and, in effect on the Issue Dateeach case, and any amendments, restatements, modifications, restatements, extensions, increasesrenewals, supplements, refundings, refinancing, renewals replacements or replacements refinancings of such those agreements; provided, however, provided that the encumbrances and restrictions in any such amendments, restatements, modifications, restatements, extensions, increasesrenewals, supplements, refundings, refinancing, renewals replacements or replacements refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in effect those agreements on the Issue Date;
(2ii) existing underthis Indenture, by reason the Notes and the Note Guarantees and the Collateral Documents;
(iii) the New Credit Facility and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of or with respect to any the New Credit Facility;
(iv) agreements governing other Indebtedness of Foreign Subsidiaries permitted to be incurred under the Issuers provisions of Section 4.08 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or their refinancings of those agreements;
(v) applicable law, rule, regulation or order;
(vi) 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 acquisition (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; provided that, in the case of Indebtedness, such Indebtedness was permitted under by the terms of this IndentureIndenture to be incurred;
(vii) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;
(viii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in Section 4.11(a)(iii);
(ix) any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(x) Permitted Refinancing Indebtedness; provided, however, provided that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair in any material respect the Issuers’ and agreements governing the Guarantors’ ability to make payments on the Notes and Guarantees thereof when dueIndebtedness being refinanced;
(3xi) existing Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(xii) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with respect a Restricted Investment) entered into with the approval of the Board of Directors of the Company, which limitation is applicable only to any Person or the property or assets that are the subject of such Person acquired agreements; and
(xiii) restrictions on cash or other deposits or net worth imposed by an Issuer 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are customers under contracts entered into in 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 such Person or its property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of Section 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (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 Issuers Parent shall not, and shall not permit any of its Restricted 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 an Issuer the Parent or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer the Parent or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer the Parent or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer the Parent or any other Restricted Subsidiary.
(b) Section 5.13(a4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to this Indenture, the Notes, the Guaranties, the indenture governing the 2019 Notes, the Revolving Credit Agreement and any other agreement in effect on the Issue Date Date, in each case as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictiveless favorable, taken as a whole, to the Holders of the Notes than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness Credit Facility of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness Credit Facility are not materially more restrictiveless favorable, taken as a whole, to the Holders of the Notes than those contained in customary comparable financings and will not impair any of the Revolving Credit Agreement (with respect to other credit agreements) or this Indenture (with respect to other indentures), in any material respect the Issuers’ and the Guarantors’ ability to make payments each case as in effect on the Notes and Guarantees thereof when dueIssue Date;
(3) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(4) existing with respect to any Person or the property or assets of such Person acquired by an Issuer the Parent 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, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or not materially more restrictiveless favorable, taken as a whole, to the Holders of the Notes than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition;
(45) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreementsagreements to the extent they are limited in application to the Restricted Subsidiary party to such agreement;
(56) in the case of Section 5.13(a)(44.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer the Parent or any 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
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer the Parent or any Restricted Subsidiary in any manner material to an Issuer the Parent and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or
(7) 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;
(8) existing under, by reason of or with respect to Indebtedness permitted to be incurred pursuant to Section 4.08(d)(14); provided that the encumbrances and restrictions contained in the agreements governing such Indebtedness are not materially less favorable, taken as a whole, to the Holders of the Notes than those contained in the agreements governing the Indebtedness being refinanced; and
(9) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially less favorable, taken as a whole, to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Parent) and
(iii) the Parent, in its good faith, determines that such an encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes.
(c) Nothing contained in this Section 5.13 4.13 shall prevent an Issuer the Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer the Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.13, (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 Issuers shall will not, and shall will not permit any Restricted 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:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries;
(2ii) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3iii) make loans or advances to an Issuer or any other Restricted Subsidiary; or
(4iv) transfer its property or assets to an Issuer or any other Restricted Subsidiary.
(b) Section 5.13(a) The foregoing provisions shall not restrict any encumbrances or restrictions:
(1i) existing under, by reason of or with respect to to, this Indenture, the Security Documents, the First Lien Intercreditor Agreement, the U.S. Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2ii) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith 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 material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Note Guarantees thereof when due;
(3iii) existing with respect to any Person or the property or assets of such Person acquired by an Issuer 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 amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or are not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition;
(4iv) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5v) in the case of clause (D) in the first paragraph of this Section 5.13(a)(4):4.08:
(iA) 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,;
(iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,;
(iiiC) 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
(ivD) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6vi) any encumbrance or restriction with respect to a Restricted Subsidiary that is a 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; or;
(7vii) 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.; or
(cviii) encumbrances or restrictions existing under or by reason of applicable law, regulation, order, approval, license, permit or similar restriction or agreement with governmental authorities with respect to assets located in their jurisdiction. Nothing contained in this Section 5.13 4.08 shall prevent an Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.134.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock 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.
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Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuers shall Company will not, and shall will not permit any of its Restricted 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 such Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted on its Capital Interests owned by applicable law on the Company or any Capital Stock of such Restricted Subsidiary owned by an Issuer or pay any Debt or other obligation owed to the Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
, (3ii) make loans or advances to an Issuer the Company or any other Restricted Subsidiary; or
Subsidiary thereof or (4iii) transfer any of its property or assets to an Issuer the Company or any other Restricted Subsidiary.
(b) Section 5.13(a) shall . However, the preceding restrictions will not restrict any apply to the following encumbrances or restrictionsrestrictions existing under or by reason of:
(1a) existing under, by reason of any encumbrance or with respect to this Indenture, the Credit Agreement and any other agreement restriction in effect on the Issue Date as in effect existence on the Issue Date, including those required by the Credit Agreement or by any other agreement or documents entered into in connection with the Credit Agreement and any amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements, renewals or replacements refinancings, of such agreements; providedany of the foregoing agreements or documents, however, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, extensionsrenewals, increases, supplements, refundings, refinancingreplacements or refinancings, renewals or replacements in the good faith judgment of the Company, are not materially no more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any such dividend or other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and payment 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 material respect the Issuers’ and the Guarantors’ ability to make payments these agreements on the Notes and Guarantees thereof when dueIssue 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 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 an Issuer 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 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 amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that long as the encumbrances and restrictions contained in any such amendmentsrefinancing agreement are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in the agreements governing the Debt being renewed, modificationsrefunded, restatementsreplaced, extensionsrefinanced or extended in the good faith judgment of the Company;
(e) customary provisions restricting subletting or assignment of any lease, increasescontract, supplementsor license of the Company or any Restricted Subsidiary 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, refundingsrule, refinancingregulation or order;
(g) any encumbrance or restriction under this Indenture, renewals the Notes and the Note Guarantees;
(h) any encumbrance or replacements are restriction under 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 customers under contracts entered into in the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements business;
(j) customary provisions with respect to such Person the disposition or its distribution of assets or property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint ventureventure agreements, operating or asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(5k) 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 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 Section 5.13(a)(4):Debt, such Debt was permitted by the terms of this Indenture to be Incurred;
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(iii) existing under, by reason of or with respect to (1l) purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of business or (2) capital leases or operating leases that impose encumbrances or restrictions on the that property so acquired or covered thereby, or
of the nature described in clause (iviii) arising or agreed to in of the ordinary course first paragraph of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a wholethis Section 4.8;
(6m) 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 encumbrance Non-Recourse Receivable Subsidiary Indebtedness or restriction with respect to other contractual requirements of a Restricted Receivable Subsidiary that is a Guarantor which was previously an Unrestricted Restricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is in connection with a party to or entered into before the date on which such Subsidiary became a Restricted SubsidiaryQualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the receivables and related assets described in the definition of Qualified Receivables Transaction which are subject to such Qualified Receivables Transaction; and
(o) any other agreement was not governing Debt entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary after the Issue Date that contains encumbrances and any such encumbrance or restriction does restrictions that are not extend to any assets or property of the Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary; or
(7) materially more restrictive with respect to a any Restricted Subsidiary and imposed pursuant than those in effect on the Issue Date with respect 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 pursuant to agreements in effect on the closing of such sale or other disposition.
(c) Issue Date. Nothing contained in this Section 5.13 4.8 shall prevent an Issuer the Company or any Restricted Subsidiary from (i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.12 or (ii) restricting the sale or other disposition of property or assets of an Issuer the Company or any of its Restricted Subsidiaries that secure Indebtedness Debt of the Issuers Company or any of their its Restricted Subsidiaries. For purposes of determining compliance Subsidiaries Incurred in accordance with this Section 5.13, (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 4.9 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 advancesSection 4.12 hereof.
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Sources: Indenture (Ashland Inc.)