Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock); (2) make any loans or advances to the Parent Guarantor or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or (3) sell, lease or transfer any of its property or assets to the Parent Guarantor or any Restricted Subsidiary. The preceding provisions will not prohibit: (i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date; (ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired; (iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary; (iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired; (v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive; (vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced; (vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction: (a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract; (b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; (c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture; (d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary; (e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or (f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business; (viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired; (ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”; (xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; (xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date; (xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock); (xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements; (xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and (xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 4 contracts
Sources: Indenture (ANTERO RESOURCES Corp), Indenture (Antero Resources LLC), Indenture (Antero Resources LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Parent Guarantor Company or another a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquiredacquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplementalincrease, refunding, replacement or refinancing of an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole are no less favorable in any material respect whole, to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, replaced consolidation, acquisition of Capital Stock or refinancedotherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(viiiv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.14 on the property so acquiredacquired or leased;
(ixv) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of all Capital Stock or a portion otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xvi) customary non-assignment provisions in leases and other agreements entered into by the Company or any customary encumbrances or restrictions imposed pursuant to any agreement of the type described Restricted Subsidiary in the definition ordinary course of “Permitted Business Investment”business;
(xivii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xiiviii) customary encumbrances or restrictions contained existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board definition of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date“Permitted Indebtedness”;
(xiii) in the issuance case of Preferred Stock by a any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the payment Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends thereon and other distributions in accordance respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms thereof; provided that issuance are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);Subsidiary; and
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) any encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, restatements, modifications, restatements, renewals, increases, supplementsrestrictions, encumbrances, refundings, replacements or refinancings thereofof the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, restatements, renewals, increases, supplementsrestrictions, encumbrances, refundings, replacements or refinancings are are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more restrictive materially restrictive, taken as a whole, with respect to such dividend encumbrances and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Dateprior to such amendment or refinancing.
Appears in 4 contracts
Sources: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC), Indenture (Davita Healthcare Partners Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions .
(b) However, Section 5.10(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign SubsidiaryRestricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2b) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 5.10(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 5.10(b); provided provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.45.10(a) above, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 5.10(a) on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.25.07; provided provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided provided, that issuance of such Preferred Stock is permitted pursuant to Section 3.2 5.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi16) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings refinancing thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 4 contracts
Sources: Fifth Supplemental Indenture (SM Energy Co), Fourth Supplemental Indenture (SM Energy Co), Third Supplemental Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions .
(b) However, Section 4.10(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign SubsidiaryRestricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2b) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 4.10(b); provided provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.44.10(a) above, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.10(a) on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.07; provided provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided provided, that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi16) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings refinancing thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 4 contracts
Sources: Indenture (SM Energy Co), Indenture (SM Energy Co), Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Issuer);
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) through (v) or clause (xii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 3 contracts
Sources: Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Borrower will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Borrower or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall and any subordination of any such Indebtedness or other obligations being deemed not be deemed a restriction on the ability to make distributions on Capital Stockconstitute such encumbrances or restrictions);
(2b) make any loans or advances to the Parent Guarantor Borrower or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Borrower or any Restricted Subsidiary shall being deemed not be deemed a restriction on the ability to make loans constitute such an encumbrance or advancesrestriction); or
(3c) sell, lease or transfer any of its property or assets to the Parent Guarantor Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Datedate of this Agreement, including, without limitation, this Indenture as the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person the Restricted Subsidiary was acquired by the Parent Guarantor or another Restricted Subsidiary Borrower (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Borrower or in contemplation of the transactiontransaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of amendment to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the agreements governing date of this Agreement or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viiiv) in the case of clause (3c) of the first paragraph of this Section 3.49.05, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture Agreement securing Indebtedness of the Parent Guarantor Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;; or
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Borrower or any Restricted Subsidiary;
(ev) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (aA) purchase money obligations for property acquired in the ordinary course of business and (bB) Capitalized Capital Lease Obligations permitted under this IndentureAgreement, in each case, that impose encumbrances or restrictions of the nature described in clause (3c) of the first paragraph of this Section 3.4 9.05 on the property so acquired;
(ixvi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xvii) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described referred to in the definition of “Permitted Business Investment;”;
(xiviii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 3 contracts
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors or the principal financial officer of the Parent GuarantorIssuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Finance Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Issuer or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Issuer taken as a whole, as determined by the Board of Directors or the principal financial officer of the Parent Guarantor Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 3 contracts
Sources: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this the Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph or this clause (vi6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph or this clause (vi6); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.41114, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this the Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this the Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 1114 on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.21111; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this the Indenture as in effect on the Issue Date;
(xiii13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 1111 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv14) supermajority voting requirements existing under corporate charters, bylawsby-laws, stockholders agreements and similar documents and agreements;
(xv15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi16) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Tenth Supplemental Indenture (Concho Resources Inc), Seventh Supplemental Indenture (Concho Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Issuer);
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) through (v) or clause (xii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;; and
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue DateDate and identified in Schedule 3.4 to this Indenture, including, without limitation, this Indenture as Indenture, the Collateral Documents, the Securities, the Exchange Securities, the Subsidiary Guarantees and the Working Capital Facility (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by the Parent Guarantor Company or another a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquiredacquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii) or contained in any amendment, restatement, modification, renewal, supplementalsupplement, refunding, replacement or refinancing of an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect respect, taken as a whole, to the holders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viiiv) in the case of clause (3) of the first paragraph of this Section 3.43.4(3), any encumbrance encumbrance, lien or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements otherwise permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;; or
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(3) of the first paragraph of this Section 3.4 on the property so acquired;
(ixvi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xvii) any customary encumbrances or restrictions imposed pursuant provisions in joint venture agreements relating to any agreement of the type described joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the definition ordinary course of “Permitted Business Investment”business;
(xiviii) deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xiix) encumbrances or restrictions contained in agreements governing Indebtedness of indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance with Section 3.2 that are not more restrictive, taken as a whole, than those applicable to the Parent Guarantor Company in either this Indenture or any of its the Working Capital Facility on the Issue Date (which result in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xi) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with and permitted pursuant to Section 3.2; provided that the provisions relating to such encumbrance or restriction encumbrances and restrictions contained in such Indebtedness are any agreement or instrument will not materially less favorable affect the Company’s ability to make anticipated principal or interest payments on the Parent Guarantor taken as a whole, Securities (as determined in good faith by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital StockCompany);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Indenture (Cellu Tissue - CityForest LLC), Indenture (Cellu Tissue Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
; (2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
or (3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. .
(b) The preceding provisions of Section 3.6
(a) will not prohibit:
: (i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture as in effect on such date;
Indenture, the indenture for the 8 3/4% Notes and the Credit Agreement; (ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by the Parent Guarantor or another Restricted Subsidiary Company (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
; (iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (vSection 3.6(b)(i) or clause (xiib)(ii) of this paragraph or this clause (viSection 3.6(b)(iii) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of amendment to an agreement referred to in clauses (i) through (vSection 3.6(b)(i) or clause (xiib)(ii) of this paragraph or this clause (viSection 3.6(b)(iii); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in Section 3.6(b)(i) or (b)(ii) on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary, replaced or refinanced;
whichever is applicable; (viiiv) in the case of clause (3) of the first paragraph of this Section 3.43.6(b)(iii), any encumbrance or restriction:
restriction (a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license (including, without limitation, licenses of intellectual property) or other contract;
; (b) contained in mortgages, pledges or other security agreements permitted under this the Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
; or (c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;; (v)
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 3.6
(a) on the property so acquired;
; (ixvi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (xvii) net worth provisions in leases and other agreements entered into by the Company or any customary encumbrances or restrictions imposed pursuant to any agreement of the type described Restricted Subsidiary in the definition ordinary course of “Permitted Business Investment”;
business; and (xiviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Indenture (Nebraska Book Co), Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Issuer or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Issuer taken as a whole, as determined by the Board of Directors of the Parent Guarantor Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement Agreements and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the either Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the such Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary GuarantorCo-Issuer) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any other Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, including this Indenture and the Senior Secured Credit Agreement, each as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions any encumbrance or restriction contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through and (vii) or clause (xiiix) of this paragraph or this clause (viiv) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through and (vii) or clause (xiiix) of this paragraph or this clause (viiv); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(viiv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, including licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viiivi) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations Obligations, in each case that are permitted under this Indenture, in each case, Indenture and that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property or assets so acquired, and any proceeds thereof;
(ixvii) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition of all or a portion of the Capital Stock or property or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or other disposition;
(xviii) any customary encumbrances encumbrance or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions restriction arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xiiix) encumbrances any encumbrance or restrictions restriction contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness Indebtedness, taken as a whole, are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;Indenture; and
(xiiix) the issuance of Preferred Stock by a Restricted Subsidiary any encumbrance or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions restriction on cash or other deposits or net worth imposed by customers under contracts or required by insurance, surety or bonding companies, in each case entered into or incurred in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Indenture (Alta Mesa Holdings, LP), Indenture (Alta Mesa Energy LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions .
(b) However, Section 4.10(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi5) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v) or 4), clause (xii10) of this paragraph or this clause (vi5) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v) or 4), clause (xii10) of this paragraph or this clause (vi5) of this Section 4.10(b); provided provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii6) in the case of clause (3) of the first paragraph of this Section 3.44.10(a) above, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii7) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.10(a) on the property so acquired;
(ix) 8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii10) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.07; provided provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Holders of Notes taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii11) encumbrances or restrictions contained in agreements entered into in connection with the Credit Agreement as amended from time to time, or the Existing Senior Notes as amended from time to time, that apply during the occurrence of a continuing default or event of default under the Credit Agreement or Existing Senior Notes;
(12) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided provided, that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);; and
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Sources: Indenture (Ultra Petroleum Corp), Indenture (Ultra Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any of its Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations indebtedness owed to the Parent Guarantor Company or any of its Restricted Subsidiary (it being understood Subsidiaries; provided that the priority that any series of any Preferred Stock of a Restricted Subsidiary has in receiving dividends dividends, distributions or liquidating distributions prior to dividends before dividends, distributions or liquidating distributions being are paid on Common Stock in respect of common stock of such Restricted Subsidiary shall not be deemed constitute a restriction on the ability to make dividends or distributions on Capital Stock)Stock for purposes of this covenant;
(2) make any loans or advances to the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries to other Indebtedness Incurred incurred by the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property properties or assets to the Parent Guarantor Company or any of its Restricted SubsidiarySubsidiaries. The However, the preceding provisions restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the Issue Date and any encumbrance amendments, restatements, modifications, renewals, supplements, refundings, replacements or restriction pursuant to refinancings of those agreements; provided that the encumbrances or by reason restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an agreement officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in effect at or entered into those agreements on the Issue Date;
(2) this Indenture, includingthe Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of the covenant described in Section 3.2 and any amendments, without limitationrestatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are, in the reasonable good faith judgment of an officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on such datethe Issue Date or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(ii4) applicable law, rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such agreement or instrument was created 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 and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, 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 Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph;
(8) 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;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of the covenant described in Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business;
(16) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall does not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;of such Unrestricted Subsidiary; and
(v17) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such contractual encumbrances or restrictions restrict in effect on the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this IndentureIssue Date and, in each case, that impose any similar contractual encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing effected by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided of such agreements or instruments. 66 In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such amendmentsencumbrance or restriction, modificationsan encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, restatementsadditions, renewalsrepairs, increasesattachments or accessions thereto, supplementsassets and property affixed or appurtenant thereto, refundingsparts, replacements or refinancings are no more restrictive with and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Datethereof.
Appears in 1 contract
Sources: Indenture (Earthstone Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; Issuer or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (ANTERO RESOURCES Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Initial Issue Date, including, without limitation, this Indenture as Indenture, the Security Documents, the Intercreditor Agreement or Permitted Letter of Credit Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to to, entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through ), (vii), (iv) or clause (xiixi) of this paragraph or this clause (viv) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through ), (vii), (iv) or clause (xiixi) of this paragraph or this clause (viv); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i), (ii), (iv) or (xi) of this paragraph on the agreements governing Initial Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viivi) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgagesMortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgagesMortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this First Supplemental Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this First Supplemental Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this First Supplemental Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Issuer or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.12; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Issuer and its Restricted Subsidiaries, taken as a whole, as determined by the Board of Directors of the Parent Guarantor Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this First Supplemental Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.12 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and;
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date; and
(xvii) any encumbrance or restriction that is no more restrictive than any encumbrance or restriction in the Senior Secured Credit Agreement and that is contained in any agreement creating Hedging Obligations permitted from time to time hereunder.
Appears in 1 contract
Sources: First Supplemental Indenture (Rosetta Resources Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor (a) Holdings will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Holdings or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2ii) make any loans or advances to the Parent Guarantor Holdings or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Holdings or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Holdings or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Parent Guarantor Holdings or any Restricted Subsidiary. .
(b) The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Holdings or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Holdings or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Holdings or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Holdings and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Holdings or any Restricted Subsidiary in any manner material to the Parent Guarantor Holdings or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Holdings or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines Issuers determine that any such encumbrance or restriction will not materially affect the Parent Guarantor’s Issuers’ ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Company);
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph (b) or this clause (vi6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph (b) or this clause (vi6); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (12) of this paragraph (b) on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.44.11(a)(iii), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture arising from Permitted Liens securing Indebtedness of the Parent Guarantor Holdings or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Holdings or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business; or;
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development asset sale agreements, area of mutual interest stock sale agreements and other similar agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(viiif) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction contained relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.11(a)(iii) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as Indenture, the Security Documents, the Intercreditor Agreement or Permitted Letter of Credit Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to to, entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through ), (vii), (iv) or clause (xiixi) of this paragraph or this clause (viv) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through ), (vii), (iv) or clause (xiixi) of this paragraph or this clause (viv); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i), (ii), (iv) or (xi) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viivi) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgagesMortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgagesMortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ixviii) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xix) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;; and
(xiixi) encumbrances or restrictions contained in agreements governing Indebtedness arising or existing by reason of the Parent Guarantor any Permitted Commodity Hedging Obligation or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue DatePermitted Other Hedging Obligation.
Appears in 1 contract
Sources: Indenture (GMX Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Issuer);
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplementalsupplement, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) through (v) or clause (xii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;; and
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive.
Appears in 1 contract
Sources: Indenture (Chaparral Energy, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement or other instrument in effect at or entered into on the Issue Datedate of this Indenture, including, without limitationincluding under, this Indenture as and the Senior Secured Credit Agreement or identified in effect on such date;Schedule 3.4 to this Indenture.
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a such Person on or before the date on which such Person was acquired by the Parent Guarantor or another Company and became a Restricted Subsidiary or part thereof or of the Company (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall may not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property of the Person so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to the Company or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of other instrument relating to Refinancing Indebtedness that refinanced Indebtedness Incurred pursuant to an agreement or other instrument referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of amendment to an agreement or other instrument referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii); provided provided, however, that the encumbrances and restrictions with respect to the Company or such Restricted Subsidiary contained in any such agreement taken as a whole or other instrument or amendment are no less favorable in any material respect to the holders Holders of the Securities than the encumbrances and restrictions contained in such agreement or other instrument or amendment referred to in clauses (i) or (ii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Person became a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viiiv) in the case of clause (3) of the first paragraph of this Section 3.4covenant, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, sublease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, sublease, license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;; or
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for assets or property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 covenant on the property so acquired;
(ixvi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xvii) any customary encumbrances or restrictions imposed pursuant provisions in joint venture agreements relating to any agreement of the type described joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the definition ordinary course of “Permitted Business Investment”business;
(xiviii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Gerdau Usa Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of (a) an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such dateDate or (b) the Note Documents;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv3) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v4) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi5) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v4) or clause (xii11) of this paragraph or this clause (vi5) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v4) or clause (xii11) of this paragraph or this clause (vi5); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement agreement, taken as a whole whole, are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii6) in the case of clause (3) of the first paragraph of this Section 3.41114, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;.
(viii7) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 1114 on the property so acquired;
(ix) 8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x9) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii11) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.21111; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii12) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 1111 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv13) supermajority voting requirements existing under corporate charters, bylawsby-laws, stockholders agreements and similar documents and agreements;
(xv14) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and;
(xvi15) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date; and
(16) encumbrances or restrictions existing under or by reason of Indebtedness secured by a Lien otherwise permitted to be incurred hereunder that limit the right of the debtor to dispose of the assets securing such Indebtedness and any restrictions arising in connection with any Liens relating to such secured Indebtedness; provided, that such encumbrances or restrictions are no more restrictive, taken as a whole, as those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Stone Energy Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor will Company shall not, and will shall not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above).
(b) Section 6.10(a) of this First Supplemental Indenture shall not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as the Indenture, the Notes and the Senior Credit Facility (and related documentation) in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to any Capital Stock or by reason of agreement (including an agreement relating to any Capital Stock or Indebtedness Indebtedness) Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary became a Restricted Subsidiary or was merged with or into or consolidated with or was acquired by the Parent Guarantor Company or another a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired and all improvements, additions and accessions thereto and products and proceeds thereof, and that, in the case of Indebtedness, was permitted to be Incurred pursuant to the Indenture;
(3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing, in whole or in part, of Indebtedness Incurred pursuant to an agreement referred to in clause (1) or (2) of this Section 6.10(b) or this clause (3) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (1) or (2) of this Section 6.10(b) or this clause (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are not materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of this Section 6.10(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(4) in the case of clause (3) of Section 6.10(a) of this First Supplemental Indenture, encumbrances and restrictions in agreements governing Liens permitted to be incurred under the provisions of Section 6.09 of this First Supplemental Indenture;
(5) (i) purchase money obligations for property acquired in the ordinary course of business and (ii) Capitalized Lease Obligations permitted under the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause(3) of Section 6.10(a) of this First Supplemental Indenture on the property so acquired;
(iii6) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) any customary encumbrances or restrictions imposed pursuant to any agreement constituting a Permitted Business Investment;
(8) restrictions on cash or other deposits and net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(10) encumbrances or restrictions contained in Credit Facilities, indentures, other debt agreements and Hedging Obligations Incurred by the Company or any Restricted Subsidiary or Preferred Stock issued by Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 6.06 of this First Supplemental Indenture; provided that such encumbrances and restrictions contained in any such agreement or instrument shall not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined by the Board of Directors of the Company);
(11) customary supermajority voting provisions and other similar provisions contained in corporate charters, bylaws, stockholders’ agreements, limited liability company agreements, partnership agreements, joint venture agreements and other similar agreements;
(12) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to or the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance Company or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained to realize such value, or to make any distributions relating to such property or assets in any such agreement taken as a whole are no less favorable each case in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of businessrespect; and
(xvi13) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Datetransfer of property or assets required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as Indenture, the Security Documents and the Intercreditor Agreement in effect on such datedate but excluding the Senior Secured Credit Agreement;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing other Indebtedness of the Parent Guarantor Issuer or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.12; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Issuer taken as a whole, as determined by the Board of Directors of the Parent Guarantor Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.12 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplementssupple- ments, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Atp Oil & Gas Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this the Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph or this clause (vi6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph or this clause (vi6); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.41114, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this the Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this the Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;.
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 1114 on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.21111; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this the Indenture as in effect on the Issue Date;
(xiii13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 1111 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv14) supermajority voting requirements existing under corporate charters, bylawsby-laws, stockholders agreements and similar documents and agreements;
(xv15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi16) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Sixth Supplemental Indenture (Concho Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor will Company shall not, and will shall not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above).
(b) Section 6.10(a) of this Second Supplemental Indenture shall not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as the Indenture, the Notes and the Senior Credit Facility (and related documentation) in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to any Capital Stock or by reason of agreement (including an agreement relating to any Capital Stock or Indebtedness Indebtedness) Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary became a Restricted Subsidiary or was merged with or into or consolidated with or was acquired by the Parent Guarantor Company or another a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired and all improvements, additions and accessions thereto and products and proceeds thereof, and that, in the case of Indebtedness, was permitted to be Incurred pursuant to the Indenture;
(3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing, in whole or in part, of Indebtedness Incurred pursuant to an agreement referred to in clause (1) or (2) of this Section 6.10(b) or this clause (3) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (1) or (2) of this Section 6.10(b) or this clause (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are not materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of this Section 6.10(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(4) in the case of clause (3) of Section 6.10(a) of this Second Supplemental Indenture, encumbrances and restrictions in agreements governing Liens permitted to be incurred under the provisions of Section 6.09 of this Second Supplemental Indenture;
(5) (i) purchase money obligations for property acquired in the ordinary course of business and (ii) Capitalized Lease Obligations permitted under the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause(3) of Section 6.10(a) of this Second Supplemental Indenture on the property so acquired;
(iii6) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) any customary encumbrances or restrictions imposed pursuant to any agreement constituting a Permitted Business Investment;
(8) restrictions on cash or other deposits and net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(10) encumbrances or restrictions contained in Credit Facilities, indentures, other debt agreements and Hedging Obligations Incurred by the Company or any Restricted Subsidiary or Preferred Stock issued by Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 6.06 of this Second Supplemental Indenture; provided that such encumbrances and restrictions contained in any such agreement or instrument shall not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined by the Board of Directors of the Company);
(11) customary supermajority voting provisions and other similar provisions contained in corporate charters, bylaws, stockholders’ agreements, limited liability company agreements, partnership agreements, joint venture agreements and other similar agreements;
(12) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to or the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance Company or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained to realize such value, or to make any distributions relating to such property or assets in any such agreement taken as a whole are no less favorable each case in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of businessrespect; and
(xvi13) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Datetransfer of property or assets required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions .
(b) However, Section 5.10(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture the Note Documents as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign SubsidiaryRestricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2b) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingre-funding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 5.10(b) or contained in any amendment, restatement, modification, renewal, supplemental, refundingre-funding, replacement or refinancing of an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 5.10(b); provided provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refundedre-funded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.45.10(a) above, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash cash, Cash Equivalents, or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property or transfer of Capital Stock in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 5.10(a) on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law Legal Requirements or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.25.07; provided provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided provided, that issuance of such Preferred Stock is permitted pursuant to Section 3.2 5.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi16) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundingsre-fundings, replacements or refinancings refinancing thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundingsre-fundings, replacements or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor (a) ARP will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor ARP or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2ii) make any loans or advances to the Parent Guarantor ARP or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor ARP or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor ARP or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Parent Guarantor ARP or any Restricted Subsidiary. .
(b) The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of (a) an agreement in effect at or entered into on the Issue Date, including, without limitation, Date and (b) this Indenture as in effect on such dateIndenture;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor ARP or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor ARP or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor ARP or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor ARP and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor ARP or any Restricted Subsidiary in any manner material to the Parent Guarantor ARP or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor ARP or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines Issuers determine that any such encumbrance or restriction will not materially affect the Parent Guarantor’s Issuers’ ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Company);
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph (b) or this clause (vi6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph (b) or this clause (vi6); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (12) of this paragraph (b) on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.44.11(a)(iii), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture arising from Permitted Liens securing Indebtedness of the Parent Guarantor ARP or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor ARP or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business; or;
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development asset sale agreements, area of mutual interest stock sale agreements and other similar agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(viiif) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction contained relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.11(a)(iii) of the first paragraph of this Section 3.4 on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi12) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor will Company shall not, and will shall not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as and the Senior Secured Credit Agreement in effect on such date;
(ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by the Parent Guarantor or another Restricted Subsidiary Company (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of amendment to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i)or (ii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viiiv) in the case of clause (3) of the first paragraph of this Section 3.43.7, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;; or
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (av) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 3.7 on the property so acquired;
(ixvi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xvii) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described referred to in the definition of “Permitted Business Investment”;
(xiviii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Delta Petroleum Corp/Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor will Company shall not, and will shall not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock Stock, or any restrictions related thereto, shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. .
(b) The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as Indenture, the Securities, the Securities Guarantees, the Exchange Securities, the Securities Guarantees in respect of the Exchange Securities and the Senior Secured Credit Agreement (or related documents) in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by the Parent Guarantor Company or another a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Capital Stock or Indebtedness Incurred pursuant to an agreement referred to in clauses clause (i) through (v1) or clause (xii2) of this paragraph Section 3.4(b) or this clause (vi3) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of amendment to an agreement referred to in clauses clause (i) through (v1) or clause (xii2) of this paragraph Section 3.4(b) or this clause (vi3); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are not materially more restrictive, taken as a whole are no less favorable in any material respect whole, to the holders Holders of the Securities (as determined in good faith by the Board of Directors of the Company) than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of this Section 3.4(b) on the agreements governing Closing Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(vii4) in the case of clause (3) of the first paragraph of this Section 3.43.4(a), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;; or
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Issuer or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.12; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Issuer and its Restricted Subsidiaries, taken as a whole, as determined by the Board of Directors of the Parent Guarantor Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.12 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and;
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date; and
(xvii) any encumbrance or restriction that is no more restrictive than any encumbrance or restriction in the Senior Secured Credit Agreement and that is contained in any agreement creating Hedging Obligations permitted from time to time hereunder.
Appears in 1 contract
Sources: Indenture (Rosetta Resources Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an the Senior Secured Credit Agreement and related documentation and any other agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction pursuant to this Indenture, the Securities, the Exchange Securities and the Subsidiary Guarantees;
(iii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiiv) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(ivv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(vvi) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusiveconclusive and which encumbrances and restrictions do not extend to any Subsidiary that is not a Foreign Subsidiary;
(vivii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement replacement, refinancing, amendment, modification, restatement, renewal, increase or refinancing supplement of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (iii), (v), (vi) or clause (xiixiii) of this paragraph or this clause (vivii) or contained in any amendment, restatement, modification, renewal, supplementalsupplement, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (iii), (v), (vi) or clause (xiixiii) of this paragraph or this clause (vivii); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinancedrefinanced as determined in good faith by the Senior Management of the Company;
(viiviii) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viiiix) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ixx) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(xxi) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xixii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xiixiii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Indebtedness, taken as a whole, are no less favorable in any material respect to the holders, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiiixiv) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;; and
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Warren Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor will Company shall not, and will shall not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement (a) in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture as and the Senior Secured Credit Facility and the Subsidiary Credit Agreements in effect on such datedate and (b) relating to Indebtedness Incurred after the Issue Date so long as any such encumbrances or restrictions are substantially similar to encumbrances or restrictions permitted pursuant to clause (i)(a);
(ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by the Parent Guarantor or another Restricted Subsidiary Company (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Parent Guarantor or a Restricted Subsidiary Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of amendment to an agreement referred to in clauses clause (i) through or (v) or clause (xiiii) of this paragraph or this clause (viiii); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i)or (ii) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viiiv) in the case of clause (3) of the first paragraph of this Section 3.43.6, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties)lease, license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges agreements or other security agreements instruments related to any Lien permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;Lien; or
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (av) purchase money obligations and Capitalized Lease Obligations for property acquired or leased in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 3.6 on the property so acquiredacquired or leased;
(ixvi) any encumbrance or restriction (a) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (b) on the sale or other disposition of Capital Stock of Persons that are Unrestricted Subsidiaries of the Company or are not Subsidiaries of the Company;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xivii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xiiviii) encumbrances or restrictions, including, without limitation, encumbrances or restrictions contained on cash or assets in agreements governing Indebtedness escrow accounts of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained deposits paid on property used in the Senior Secured Credit Agreement and Company's business, in this Indenture as in effect on the Issue Dateeach case imposed by applicable law or regulation or by governmental licenses, concessions, franchises or permits;
(xiiiix) the issuance of Preferred Stock by a Restricted Subsidiary encumbrances or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(x) customary limitations on the distribution or disposition of property or assets in joint venture agreements governing Persons that are Unrestricted Subsidiaries or are not Subsidiaries of the Company; provided that such encumbrance or restriction is applicable only to the Company or the Restricted Subsidiary entering into such joint venture agreement; and provided further that:
(a) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Securities than is customary in comparable agreements (as determined by the Company's Board of Directors); and
(xvib) the Company determines that any such encumbrance or restriction will not materially affect its ability to make any anticipated principal or interest payment on the Securities; and
(xi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and nature described in 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 with respect to such dividend and other payment restrictions than those contained clause (3) of the first paragraph of this Section 3.6 arising by reason of customary non-assignment provisions in the Senior Secured Credit Agreement as in effect on the Issue Dateagreements.
Appears in 1 contract
Sources: Indenture (NCL CORP Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as and the Senior Secured Credit Agreement in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to to, entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through ), (vii), (iv) or clause (xiixi) of this paragraph or this clause (viv) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through ), (vii), (iv) or clause (xiixi) of this paragraph or this clause (viv); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i), (ii), (iv) or (xi) of this paragraph on the agreements governing Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(viivi) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (GMX Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor (a) Holdings will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Holdings or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2ii) make any loans or advances to the Parent Guarantor Holdings or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Holdings or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Holdings or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Parent Guarantor Holdings or any Restricted Subsidiary. .
(b) The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of (a) an agreement in effect at or entered into on the Original Issue Date, including, without limitation, this the Existing Notes Indenture as in effect on such datedate and (b) the Indenture;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Holdings or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Holdings or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Holdings or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Holdings and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Holdings or any Restricted Subsidiary in any manner material to the Parent Guarantor Holdings or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Holdings or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines Issuers determine that any such encumbrance or restriction will not materially affect the Parent Guarantor’s Issuers’ ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Company);
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph (b) or this clause (vi6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v5) or clause (xii12) of this paragraph (b) or this clause (vi6); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders of the Securities Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (12) of this paragraph (b) on the agreements governing Original Issue Date or the Indebtedness being refundeddate such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, replaced or refinancedwhichever is applicable;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.45.11(a)(iii), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil oil and Gas Propertiesgas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture arising from Permitted Liens securing Indebtedness of the Parent Guarantor Holdings or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Holdings or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business; or;
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development asset sale agreements, area of mutual interest stock sale agreements and other similar agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(viiif) any agreement or instrument relating to any property or assets acquired after the Original Issue Date, so long as such encumbrance or restriction contained relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 5.11(a)(iii) of the first paragraph of this Section 3.4 on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi12) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Original Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Original Issue Date.
Appears in 1 contract
Sources: First Supplemental Indenture (Atlas Energy Resources, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any of its Restricted Subsidiary (other than the Issuer Subsidiaries to, directly or a Subsidiary Guarantor) toindirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary of the Company to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2iii) make any loans or advances to the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries to other Indebtedness Incurred by the Parent Guarantor Company or any of its Restricted Subsidiary Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iv) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any of its Restricted Subsidiary. Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (i) or (iii) above).
(b) The preceding provisions will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on this Indenture, the Issue Date, including, without limitation, this Indenture as in effect on such dateNotes and the Note Guarantees;
(ii) any encumbrance agreement or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person instrument existing on or before the date on which such Person was acquired by the Parent Guarantor or another Restricted Subsidiary Issue Date (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummateexcept for this Indenture, the transaction Notes or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquiredNote Guarantees);
(iii) encumbrances and restrictions contained in contracts entered into in (x) any agreement or other instrument of a Person acquired by the ordinary course Company or any of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Parent Guarantor and the its Restricted Subsidiaries to realize in existence at the value of, property time of such acquisition (but not created in contemplation thereof) or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(ivy) any encumbrance agreement or restriction other instrument with respect to a Restricted Subsidiary of the Company that was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted such Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation Subsidiary of the Unrestricted Subsidiary becoming a Restricted Subsidiary Company (but not created in contemplation thereof), in the case of (x) and any such (y) above, which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Parent Guarantor or any other Restricted Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquiredacquired or so designated or deemed, as applicable (including after- acquired property);
(viv) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplementalsupplement, refunding, replacement or refinancing of an agreement or instrument referred to in clauses (iii), (iii) through or (v) or clause (xii) of this paragraph or this clause (viSection 4.08(b); provided provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement good faith judgment of Senior Management, not materially more restrictive, when taken as a whole are no less favorable in any material respect to the holders of the Securities whole, than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refundedreferred to in clauses (ii), replaced (iii) or refinanced;
(viiv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a4.08(b) that restricts in a customary manner on the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, Issue Date or the assignment or transfer of any date such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or Restricted Subsidiary became a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges Company or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered was merged into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionCompany, whichever is applicable;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Sibanye Gold LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Parent Guarantor Issuer will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Third Supplemental Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Issuer or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Issuer or any Restricted Subsidiary in any manner material to the Parent Guarantor Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor Issuer determines that any such encumbrance or restriction will not materially affect the Parent GuarantorIssuer’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorIssuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (3) of the first paragraph of this Section 3.44.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Third Supplemental Indenture securing Indebtedness of the Parent Guarantor Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Issuer or any Restricted Subsidiary;
(ed) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fe) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Third Supplemental Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.13 on the property so acquired;
(ix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Issuer or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.12; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Issuer and its Restricted Subsidiaries, taken as a whole, as determined by the Board of Directors of the Parent Guarantor Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Third Supplemental Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.12 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and;
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date; and
(xvii) any encumbrance or restriction that is no more restrictive than any encumbrance or restriction in the Senior Secured Credit Agreement and that is contained in any agreement creating Hedging Obligations permitted from time to time hereunder.
Appears in 1 contract
Sources: Third Supplemental Indenture (Rosetta Resources Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions .
(b) However, Section 4.10(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign SubsidiaryRestricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2b) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 4.10(b); provided provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.44.10(a) above, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.10(a) on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.with
Appears in 1 contract
Sources: Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Parent Guarantor Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor Company or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Parent Guarantor Company or any Restricted Subsidiary. The preceding provisions .
(b) However, paragraph (a) of this Section 4.10 will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor Company or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) encumbrances and restrictions contained in 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, or from the ability of the Parent Guarantor Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor Company or any Restricted Subsidiary in any manner material to the Parent Guarantor Company or any Restricted Subsidiary;
(iv4) any encumbrance or restriction with respect to a an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor Company or any other Restricted Subsidiary other than the assets and property so acquired;
(v5) with respect to any Foreign SubsidiaryRestricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2b) the Parent Guarantor Company determines that any such encumbrance or restriction will not materially affect the Parent GuarantorCompany’s ability to make principal or interest payments on the SecuritiesNotes, as determined in good faith by the Board of Directors of the Parent GuarantorCompany, whose determination shall be conclusive;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i1) through (v) or 5), clause (xii12) of this paragraph or this clause (vi6) of this Section 4.10(b); provided provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the holders Holders of the Securities Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(vii7) in the case of clause (3) of the first paragraph of this Section 3.44.10(a) above, any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(cC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(dD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor Company or any Restricted Subsidiary;
(eE) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(fF) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) 8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 4.10(a) on the property so acquired;
(ix9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(x10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(xi11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xii12) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.24.07; provided provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor Company taken as a whole, as determined by the Board of Directors of the Parent Guarantor Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided provided, that issuance of such Preferred Stock is permitted pursuant to Section 3.2 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xvi16) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in 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 with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (SM Energy Co)