Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to: (a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary, (b) make any loans or advances to the Company or any other Restricted Subsidiary or (c) transfer any of its Property to the Company or any other Restricted Subsidiary. The foregoing limitations will not apply: (1) with respect to clauses (a), (b) and (c), to restrictions: (A) in effect on the Issue Date, (B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or (C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or (D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and (2) with respect to clause (c) only, to restrictions: (A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt, (B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition, (C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or (D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such sale.
Appears in 1 contract
Sources: Indenture (Coventry Health Care Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, Stock or pay any Debt Indebtedness or other obligation owed, obligations owed to the Company or any other Restricted Subsidiary,;
(b2) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) sell, lease or transfer any of its Property property or assets to the Company or any Restricted Subsidiary.
(b) However, paragraph (a) of this Section 4.10 will not prohibit:
(1) 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;
(2) 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 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 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 Company or any other Restricted Subsidiary. The foregoing limitations will not apply:Subsidiary other than the assets and property so acquired;
(13) 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 Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to 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 Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(5) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a any Restricted Subsidiary and existing at incorporated or organized outside the time it became a Restricted Subsidiary if such United States, any encumbrance or restriction was not created contained in connection with the terms of any Indebtedness or in anticipation of the transaction or series of transactions any agreement pursuant to which such Restricted Subsidiary became Indebtedness was Incurred if either (a) 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 (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or was acquired by the Company, or
(C) resulting from the Refinancing refinancing of Debt Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (1)(A12) or (B) above or in this clause (2)(A6) 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 (B1) belowthrough (5), provided clause (12) or this clause (6) of this Section 4.10(b); provided, that the encumbrances and restrictions with respect to such restriction is Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than those under the agreement evidencing encumbrances and restrictions contained in the Debt so Refinancedagreements governing the Indebtedness being refunded, orreplaced or refinanced;
(D7) existing by reason in the case of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c3) onlyof Section 4.10(a) above, to restrictionsany 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 Debt that is permitted 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 be Incurred leasehold interests in Oil and secured Gas Properties), license (including, without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right limitation, licenses of the debtor to dispose of the Property securing such Debt,intellectual property) or other contract;
(B) encumbering Property at contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the 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 such Property was acquired by to time under this Indenture which are not included in the definition of Indebtedness pursuant to clause (3) of the penultimate paragraph of the definition thereof;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, so long as such restriction relates solely ; or
(E) provisions with respect to the Property so acquired disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(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 Section 4.10(a) on the property so acquired;
(9) 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 substantially all of the Capital Stock or assets of such agreements Restricted Subsidiary (or rights thereunder, or
(Dthe property or assets that are subject to such restriction) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such salesale or disposition;
(10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(12) encumbrances or restrictions contained in agreements governing Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.07; provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) 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 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);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(16) 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 not materially 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 (Goodrich Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital StockEquity Interests, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or distributions prior to dividends or distributions being paid on any other Equity Interests shall not be deemed a restriction on the ability to pay dividends or make distributions on Equity Interests),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date, including pursuant to (x) this Indenture, the Notes and the related Guarantees and (y) the 2024 Notes Indenture, the 2024 Notes and the related guarantees,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or,
(C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such that restriction is no not materially less favorable favorable, taken as a whole, to the Holders of Notes than those under the agreement evidencing the Debt so Refinanced, or,
(D) resulting from the Incurrence of any Permitted Debt described in clause (b) or (c) of the second paragraph of Section 4.04,
(E) relating to Debt of a Foreign Restricted Subsidiary,
(F) constituting restrictions in connection with a Permitted Receivables Financing,
(G) constituting customary restrictions in joint venture or shareholder agreements relating to any Person that is not a Wholly Owned Restricted Subsidiary,
(H) arising or existing by reason of applicable law or any applicable law, regulationrule, regulation or order, approval, license, permit or similar restrictionor
(I) that will not, in each case issued or imposed by a governmental authoritythe good faith judgment of the Company, andmaterially impair the ability of the Company to make all scheduled payments of principal and interest on the Notes as they come due,
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes and the related Guarantees pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,
(B) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or
(D) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such the sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer shall not, and shall not permit any Restricted Subsidiary that is not a Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any such Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Issuer or any other Restricted SubsidiaryGuarantor (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Issuer or any other Guarantor (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company Issuer or any other Restricted SubsidiaryGuarantor (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(Ai) in effect on the Issue Date,, including, but not limited to the Credit Agreement and the Existing Notes Indentures;
(Bii) relating with respect to Debt of a Person that becomes a Restricted Subsidiary and existing at the time it became (including any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary in accordance with this Indenture) or merges, consolidates or amalgamates with or into the Issuer or a Restricted Subsidiary on or after the Issue Date, in each case, if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by merged, consolidated or amalgamated with or into the Company, orIssuer or such Restricted Subsidiary;
(Ciii) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai) or (Bii) above or above, in clause (2)(Avi), (vii) or (Bx) belowbelow or this clause (iii), provided that the restriction contained in such restriction amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing (1) in the good faith judgment of the Issuer, will not materially impair the Issuer’s ability to make payments under the Notes when due, (2) applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Debt or (3) is no less favorable to either not materially more restrictive taken as a whole (as conclusively determined in good faith by the Holders Issuer), than those contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable, or with respect to this clause (iii), generally represents market terms (as conclusively determined in good faith by the Issuer) at the time of Incurrence;
(iv) resulting from the Incurrence of any Debt permitted to be Incurred under Section 4.04, provided that the restriction contained in such Debt (1) in the good faith judgment of the Issuer, will not materially impair the Issuer’s ability to make payments under the agreement evidencing Notes when due, (2) applies only during the Debt so Refinancedcontinuance of a default in respect of a payment or financial maintenance covenant relating to such Debt, oror (3) is either not materially more restrictive taken as a whole (as conclusively determined in good faith by the Issuer) than those contained in the Notes, the Existing Notes or the Credit Agreement, or with respect to this clause (3), generally represents market terms (as conclusively determined in good faith by the Issuer) at the time of Incurrence;
(Dv) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2vi) with respect to clause (c) above only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(Bvii) encumbering Property at the time such the Property was acquired by the Company Issuer or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(Cviii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such the agreements or rights thereunder, or;
(Dix) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Issuer’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Issuer’s ability to make principal and interest payments on the Notes;
(xi) existing by reason of this Indenture, the Notes, any exchange notes and the Note Guarantees;
(xii) contained in joint venture agreements, limited liability company agreements, organizational documents and other similar agreements;
(xiii) on cash or other deposits or net worth imposed by customers or suppliers;
(xiv) with respect to clause (c) of the first paragraph of this covenant only, arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(xv) contained in Hedging Obligations;
(xvi) constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing;
(xvii) in the case of any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, restrictions and conditions imposed by its organizational documents or any related joint venture or similar agreement; and
(xviii) resulting from customary provisions, which restrict assignment of the agreements or rights thereunder, in connection with Intellectual Property licenses, covenants not to ▇▇▇, releases or other similar rights or immunities.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create create, assume or otherwise cause or suffer to exist or become effective, or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or restriction on the legal right of any Restricted Subsidiary to:
(other than a Foreign Subsidiary) to (a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital StockStock or Redeemable Stock held by the Company or a Restricted Subsidiary, or (b) pay any Debt Indebtedness or other obligation owed, owed to the Company or any other Restricted Subsidiary,
, (bc) make any loans or advances to the Company or any other Restricted Subsidiary or
or (cd) transfer any of its Property property or assets to the Company or any other Restricted Subsidiary. The foregoing limitations Such limitation will not apply:
apply (1) with respect to clauses (a), (bc) and (c)d) only, to restrictions:
encumbrances and restrictions (Ai) in existence under or by reason of any agreements in effect on the Issue Date,
, (Bii) relating to Debt of a required by Bank Credit Facilities that are not more restrictive than those in effect under the Bank Credit Facility on the Issue Date, (iii) existing at such Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if (A) such encumbrance or restriction was not created in connection with or in anticipation of such acquisition and (B) immediately following such acquisition, on a pro forma basis, the transaction or series Company could incur at least $1.00 of transactions additional Indebtedness pursuant to clause (a) of Section 1008 or (iv) which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or
(C) resulting result from the Refinancing renewal, refinancing, extension or amendment of Debt Incurred pursuant to an agreement referred to in clause the immediately preceding clauses (1)(Ai), (ii) and (iii) above, provided, such replacement or (B) above encumbrance or in clause (2)(A) or (B) below, provided such restriction is no more restrictive to the Company or Restricted Subsidiary and is not materially less favorable to the Holders of Securities than those under or pursuant to the agreement evidencing the Debt Indebtedness so Refinancedextended, or
(D) existing by reason of applicable lawrenewed, regulationrefinanced or replaced, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
and (2) with respect to clause (cd) only, to restrictions:
(Ai) relating to Debt that is permitted to be Incurred and secured without also securing any restriction on the Notes pursuant to Sections 4.09 and 4.11 that limit the right sale, transfer or other disposition of the debtor to dispose of the assets or Property securing such Debt,
Indebtedness as a result of a Lien permitted under Section 1009, (Bii) encumbering Property at the time such Property was acquired by the Company any encumbrance or any Restricted Subsidiaryrestriction in connection with an acquisition of Property, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
, (Ciii) resulting from customary provisions restricting subletting or assignment of leases or and customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
(Div) any encumbrance or restriction due to applicable law, (v) customary restrictions contained in asset sale agreements limiting the transfer of such Property assets pending the closing of such salesale and (vi) restrictions contained in purchase money obligations for Property acquired in the ordinary course of business with respect to transfers of such Property.
Appears in 1 contract
Sources: Indenture (Vintage Petroleum Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary that is not the Issuer or a Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any such Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Company, the Issuer or any other Restricted SubsidiarySubsidiary Guarantor (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company, the Issuer or any Subsidiary Guarantor (it being understood that the subordination of loans or advances made to the Company or any other Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company Company, the Issuer or any other Restricted SubsidiarySubsidiary Guarantor (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(Ai) in effect on the Issue Date,, including, but not limited to the Credit Agreement and the Existing Notes Indentures;
(Bii) relating with respect to Debt of a Person that becomes a Restricted Subsidiary and existing at the time it became (including any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary in accordance with this Indenture) or merges, consolidates or amalgamates with or into the Company or a Restricted Subsidiary on or after the Issue Date, in each case, if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by merged, consolidated or amalgamated with or into the Company, orCompany or such Restricted Subsidiary;
(Ciii) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai) or (Bii) above or above, in clause (2)(Avi), (vii) or (Bx) belowbelow or this clause (iii), provided that the restriction contained in such restriction amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing (1) in the good faith judgment of the Company, will not materially impair the Issuer’s ability to make payments under the Notes when due, (2) applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Debt or (3) is no less favorable to either not materially more restrictive taken as a whole (as conclusively determined in good faith by the Holders Company), than those contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable, or with respect to this clause (3), generally represents market terms (as conclusively determined in good faith by the Company) at the time of Incurrence;
(iv) resulting from the Incurrence of any Debt permitted to be Incurred under Section 4.04, provided that the restriction contained in such Debt (1) in the good faith judgment of the Company, will not materially impair the Issuer’s ability to make payments under the agreement evidencing Notes when due, (2) applies only during the Debt so Refinancedcontinuance of a default in respect of a payment or financial maintenance covenant relating to such Debt, oror (3) is either not materially more restrictive taken as a whole (as conclusively determined in good faith by the Company) than those contained in the Notes, the Existing Notes or the Credit Agreement, or with respect to this clause (3), generally represents market terms (as conclusively determined in good faith by the Company) at the time of Incurrence;
(Dv) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2vi) with respect to clause (c) above only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(Bvii) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(Cviii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such the agreements or rights thereunder, or;
(Dix) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes;
(xi) existing by reason of this Indenture, the Notes, any exchange notes and the Note Guarantees;
(xii) contained in joint venture agreements, limited liability company agreements, organizational documents and other similar agreements;
(xiii) on cash or other deposits or net worth imposed by customers or suppliers;
(xiv) with respect to clause (c) of the first paragraph of this covenant only, arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(xv) contained in Hedging Obligations;
(xvi) constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing;
(xvii) in the case of any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, restrictions and conditions imposed by its organizational documents or any related joint venture or similar agreement; and
(xviii) resulting from customary provisions, which restrict assignment of the agreements or rights thereunder, in connection with Intellectual Property licenses, covenants not to ▇▇▇, releases or other similar rights or immunities.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary of the Company to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, 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 owed to the 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, and the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness or other obligation);
(b2) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the 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 or assets to the Company or any of its Restricted Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.08(a)).
(b) The foregoing limitations will preceding provisions shall not applyprohibit encumbrances or restrictions existing under or by reason of:
(1) with respect to clauses this Indenture, the Notes, the Note Guarantees and the Collateral Documents;
(a2) any agreement or instrument existing on the Issue Date (excluding this Indenture, the Notes, the Note Guarantees and the Collateral Documents), (b) and (c), to restrictions:;
(A) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in effect existence at the time of such acquisition (but not created in contemplation thereof) or (B) any agreement or 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 such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary of the Company (but not created in contemplation thereof), in the case of (A) and (B) above, 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 or so designated, as applicable (including after- acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or instrument referred to in clauses (1), (2) or (3) of this Section 4.08(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of Senior Management, not materially more restrictive, when taken as a whole, than the encumbrances and restrictions contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.08(b) on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at , the time it became a Restricted Subsidiary if such restriction was not created in connection with acquisition date or in anticipation of the transaction or series of transactions pursuant to which date such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by merged into a Restricted Subsidiary of the Company, orwhichever is applicable;
(C5) resulting from the Refinancing Credit Facility of Debt Incurred pursuant the Company or any Restricted Subsidiary permitted to an be incurred under this Indenture; provided, that the applicable encumbrances and restrictions contained in the agreement referred or agreements governing such Credit Facility are not materially more restrictive, taken as a whole, than those contained in the Credit Facility as in effect on the Issue Date;
(6) (A) customary non-assignment or subletting provisions in leases governing leasehold interests to in clause (1)(A) the extent such provisions restrict the transfer of the lease or the property leased thereunder and (B) above security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(7) in the case of clause (2)(A3) or (B) belowof Section 4.08(a), provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is Liens permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 incurred under Section 4.12 that limit the right of the debtor to dispose of the Property assets securing such Debt,Indebtedness;
(B8) purchase money obligations, Capitalized Lease Obligations and Sale/Leaseback Transactions permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) encumbering Property at of Section 4.08(a) on the time property so acquired;
(9) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Property was acquired Subsidiary;
(10) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(11) any customary provisions in joint venture, partnership, shareholders’ and limited liability company agreements relating to Joint Ventures that are not Restricted Subsidiaries of the Company and other similar agreements entered into in the ordinary course of business;
(12) any customary provisions (including non-assignment and non-transfer provisions) in leases, subleases or licenses (including licenses of intellectual property) and other agreements entered into by the Company or any of its Restricted SubsidiarySubsidiaries in the ordinary course of business;
(13) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, so long regulation, order or permit;
(14) (A) other Indebtedness incurred or Preferred Stock issued by a Guarantor in accordance with Section 4.09 that, in the good faith judgment of Senior Management, are not materially more restrictive, taken as such restriction relates solely a whole, than those applicable to the Property so acquired Company in this Indenture on the Issue Date (which results in encumbrances or restrictions at a Restricted Subsidiary of the Company level comparable to those applicable to the Company in this Indenture) or (B) other Indebtedness incurred or Preferred Stock issued by a Non-Guarantor, in each case permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09; provided that with respect to the foregoing clause (B), such encumbrances or restrictions shall not materially affect the Company’s ability to make anticipated principal and was not created interest payments on the Notes (in connection with or in anticipation the good faith judgment of such acquisition,Senior Management);
(C15) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, orany agreement with a governmental entity providing for developmental financing;
(D16) customary restrictions contained agreements relating to Hedging Obligations permitted under clause (8) of Section 4.09(b); and
(17) easements entered into in asset sale agreements limiting the transfer ordinary course of such Property pending the closing of such salebusiness.
Appears in 1 contract
Sources: Trust Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property properties or assets to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will shall not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,, including pursuant to the Credit Agreement;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orParent Guarantor;
(C) resulting that result from any amendment, restatement, modification, renewal, supplement, extension or replacement of an agreement referred to in clauses (A), (B), (F), (G), (J) or this clause (C) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred pursuant to an agreement thereunder); provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Parent Guarantor), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clause clauses (1)(AA), (B), (F), (G) or (BJ) above or in this clause (2)(AC) in this second paragraph of Section 4.08, as applicable;
(D) resulting from the Incurrence of any Permitted Debt; provided that if the obligor of such Debt is the Issuer or (B) belowa Subsidiary Guarantor, provided such the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Parent Guarantor) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2F) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property properties or assets securing such that Debt,;
(BG) encumbering Property properties or assets at the time such Property was the properties and assets were acquired by the Company Parent Guarantor or any Restricted Subsidiary, so long as such the restriction relates solely to the Property properties and assets so acquired and was not created in connection with or in anticipation of such the acquisition,;
(CH) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(DI) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property property or assets pending the closing of the sale;
(J) existing by reason of this Indenture, the Notes and the Note Guarantees;
(K) any Debt or contractual requirements Incurred with respect to a Qualified Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of such agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
to (a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary,
, (b) make any loans or advances to the Company or any other Restricted Subsidiary or
or (c) transfer any of its Property to the Company or any other Restricted Subsidiary. The foregoing limitations will not apply:
apply (1i) with respect to clauses (a), (b) and (c), to restrictions:
restrictions (A) arising under agreements of the Company and any Restricted Subsidiary (as of the Issue Date) that were in effect on the Issue Date,
, (B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the CompanyCompany or another Restricted Subsidiary, or
(C) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai)(A) or (B) above or in clause (2)(Aii)(A) or (B) below, provided PROVIDED such restriction is no less favorable to the Holders more restrictive than those under the agreement evidencing the Debt so Refinanced, or
or (D) existing any restriction required by reason any governmental body or regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
their businesses; and (2ii) with respect to clause (c) only, to restrictions:
restrictions (A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes Securities pursuant to Sections 4.09 4.03 and 4.11 4.05 that limit the right of the debtor to dispose of the Property securing such Debt,
, (B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
, (C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
thereunder or (D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual encumbrance or consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of (including the application of standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not applyapply to:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) any encumbrance or restrictions in effect or entered into on the Issue Date,, including but not limited to the Credit Agreement, this Indenture, the Notes and the Note Guaranties;
(B2) any encumbrance or restrictions relating to Debt any agreements or instruments of a Restricted Subsidiary and Person existing at the time it became a Restricted Subsidiary or to any agreements or instruments relating to any Property at the time acquired by the Company or any Restricted Subsidiary, in each case as if such encumbrance or restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company, orCompany or a Restricted Subsidiary;
(C3) any encumbrance or restrictions that result from any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt or other agreement or instrument referred to in this Section, if the encumbrance or restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company), taken as a whole, than the encumbrances or restrictions of the same type contained in the agreements or instruments referred to in this Section, as applicable;
(4) encumbrances or restrictions resulting from the Refinancing Incurrence of any Permitted Debt Incurred pursuant to an agreement referred to defined in clause Section 4.04, if the encumbrance or restriction (1)(Ai) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than those under the agreement evidencing restrictions of the Debt so Refinancedsame type contained in this Indenture and (ii) is customary for instruments of such type in the market at such time and will not materially adversely impact the ability of the Company to make required payments of principal, orinterest or premium or Additional Amounts, if any, on the Notes;
(D5) encumbrances or restrictions existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(26) with respect to clause (cSection 4.08(c) above only, to restrictions:
(A) encumbrances or restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(B7) encumbrances or restrictions encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the encumbrance or restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(C) 8) any encumbrances or restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(D9) any encumbrance or restrictions which are customary encumbrances or restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(10) any encumbrance or restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, which encumbrances or restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such encumbrances or restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes;
(11) any encumbrances or restrictions existing by reason of the Note Documents;
(12) any encumbrance or restrictions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(13) any encumbrance or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(14) in the case of the provision described in Section 4.08(c) of this Section, encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(15) encumbrances or restrictions contained in Hedging Obligations;
(16) encumbrances or restrictions constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing or Permitted Supply Chain Financing;
(17) with respect to Section 4.08(c) above only, encumbrances or restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the ordinary course for the employment, charter or other hire of such property;
(18) with respect to Section 4.08(c) above only, encumbrances or restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes encumbrances or restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
(19) encumbrances or restrictions on cash or other deposits or net worth imposed by customers, suppliers or vendors pursuant to contracts entered into in the ordinary course of business; and
(20) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments.”
Appears in 1 contract
Sources: Indenture (Seadrill LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:
(ai) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital StockStock or with respect to any other interest in or participation in, or measured by, its profits or pay any Debt Indebtedness or other obligation owed, obligations owed to the Company or any other Restricted Subsidiary,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 will not be deemed a restriction on the ability to make distributions on Capital Stock);
(bii) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any it being understood that the subordination of its Property loans or advances made to the Company or any other Restricted Subsidiary. The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or
(C) resulting from the Refinancing of Debt other Indebtedness Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such Subsidiary will not be deemed a restriction relates solely on the ability to the Property so acquired and was not created in connection with make loans or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, advances); or
(Diii) customary restrictions contained transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers will not include any type of transfer described in asset sale agreements limiting the transfer of such Property pending the closing of such saleclause (i) or (ii) above).
Appears in 1 contract
Sources: Indenture (Conexant Systems Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:of the Company to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, 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 owed to the 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, and the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness or other obligation);
(b2) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the 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 or assets to the Company or any of its Restricted Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.08(a)).
(b) The foregoing limitations will preceding provisions shall not apply:prohibit encumbrances or restrictions existing under or by reason of:
(1) this Indenture, the Notes, the Note Guarantees and the Collateral Documents;
(2) any agreement or instrument existing on the Issue Date (excluding this Indenture, the Notes, the Note Guarantees and the Collateral Documents);
(3) (A) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof) or (B) any agreement or 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 such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary of the Company (but not created in contemplation thereof), in the case of (A) and (B) above, 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 or so designated, as applicable (including after- acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or instrument referred to in clauses (a1), (b2) or (3) of this Section 4.08(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of Senior Management, not materially more restrictive, when taken as a whole, than the encumbrances and restrictions contained in the agreements referred to in clauses (c1), to restrictions:
(A2) in effect or (3) of this Section 4.08(b) on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at , the time it became a Restricted Subsidiary if such restriction was not created in connection with acquisition date or in anticipation of the transaction or series of transactions pursuant to which date such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by merged into a Restricted Subsidiary of the Company, orwhichever is applicable;
(C5) resulting from the Refinancing Credit Facility of Debt Incurred pursuant the Company or any Restricted Subsidiary permitted to an be incurred under this Indenture; provided, that the applicable encumbrances and restrictions contained in the agreement referred or agreements governing such Credit Facility are not materially more restrictive, taken as a whole, than those contained in the Credit Facility as in effect on the Issue Date;
(6) (A) customary non-assignment or subletting provisions in leases governing leasehold interests to in clause (1)(A) the extent such provisions restrict the transfer of the lease or the property leased thereunder and (B) above security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(7) in the case of clause (2)(A3) or (B) belowof Section 4.08(a), provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is Liens permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 incurred under Section 4.12 that limit the right of the debtor to dispose of the Property assets securing such Debt,Indebtedness;
(B8) purchase money obligations, Capitalized Lease Obligations and Sale/Leaseback Transactions permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) encumbering Property at of Section 4.08(a) on the time property so acquired;
(9) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Property was acquired Subsidiary;
(10) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(11) any customary provisions in joint venture, partnership, shareholders’ and limited liability company agreements relating to Joint Ventures that are not Restricted Subsidiaries of the Company and other similar agreements entered into in the ordinary course of business;
(12) any customary provisions (including non-assignment and non-transfer provisions) in leases, subleases or licenses (including licenses of intellectual property) and other agreements entered into by the Company or any of its Restricted SubsidiarySubsidiaries in the ordinary course of business;
(13) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, so long regulation, order or permit;
(14) (A) other Indebtedness incurred or Preferred Stock issued by a Guarantor in accordance with Section 4.09 that, in the good faith judgment of Senior Management, are not materially more restrictive, taken as such restriction relates solely a whole, than those applicable to the Property so acquired Company in this Indenture on the Issue Date (which results in encumbrances or restrictions at a Restricted Subsidiary of the Company level comparable to those applicable to the Company in this Indenture) or (B) other Indebtedness incurred or Preferred Stock issued by a Non-Guarantor, in each case permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09; provided that with respect to the foregoing clause (B), such encumbrances or restrictions shall not materially affect the Company’s ability to make anticipated principal and was not created interest payments on the Notes (in connection with or in anticipation the good faith judgment of such acquisition,Senior Management);
(C15) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, orany agreement with a governmental entity providing for developmental financing;
(D16) customary restrictions contained agreements relating to Hedging Obligations permitted under clause (7) of Section 4.09(b); and
(17) easements entered into in asset sale agreements limiting the transfer ordinary course of such Property pending the closing of such salebusiness.
Appears in 1 contract
Sources: Trust Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to any Issuer or any Restricted Subsidiary to other Debt Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property properties or assets to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will shall not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,, including pursuant to the Credit Agreement;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orParent Guarantor;
(C) resulting that result from any amendment, restatement, modification, renewal, supplement, extension or replacement of an agreement referred to in clauses (A), (B), (F), (G), (J) or this clause (C) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred pursuant to an agreement thereunder); provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Parent Guarantor), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clause clauses (1)(AA), (B), (F), (G) or (BJ) above or in this clause (2)(AC) in this second paragraph of Section 4.08, as applicable;
(D) resulting from the Incurrence of any Permitted Debt as defined in the second paragraph of Section 4.04; provided that if the obligor of such Debt is an Issuer or (B) belowa Subsidiary Guarantor, provided such the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Parent Guarantor) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2F) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property properties or assets securing such that Debt,;
(BG) encumbering Property properties or assets at the time such Property was the properties and assets were acquired by the Company Parent Guarantor or any Restricted Subsidiary, so long as such the restriction relates solely to the Property properties and assets so acquired and was not created in connection with or in anticipation of such the acquisition,;
(CH) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(DI) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property property or assets pending the closing of the sale;
(J) existing by reason of this Indenture, the Notes, the Note Guarantees, the Exchange Notes and the related Note Guarantees;
(K) any Debt or contractual requirements Incurred with respect to a Qualified Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of such agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property properties or assets to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will shall not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,, including pursuant to the Credit Agreement;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orParent Guarantor;
(C) resulting that result from any amendment, restatement, modification, renewal, supplement, extension or replacement of an agreement referred to in clauses (A), (B), (F), (G), (J) or this clause (C) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred pursuant to an agreement thereunder); provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Parent Guarantor), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clause clauses (1)(AA), (B), (F), (G) or (BJ) above or in this clause (2)(AC) in this second paragraph of Section 4.08, as applicable;
(D) resulting from the Incurrence of any Permitted Debt as defined in the second paragraph of Section 4.04; provided that if the obligor of such Debt is the Issuer or (B) belowa Subsidiary Guarantor, provided such the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Parent Guarantor) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2F) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property properties or assets securing such that Debt,;
(BG) encumbering Property properties or assets at the time such Property was the properties and assets were acquired by the Company Parent Guarantor or any Restricted Subsidiary, so long as such the restriction relates solely to the Property properties and assets so acquired and was not created in connection with or in anticipation of such the acquisition,;
(CH) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(DI) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property property or assets pending the closing of the sale;
(J) existing by reason of this Indenture, the Notes, the Note Guarantees, the Exchange Notes and the related Note Guarantees;
(K) any Debt or contractual requirements Incurred with respect to a Qualified Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of such agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital StockEquity Interests, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or distributions prior to dividends or distributions being paid on any other Equity Interests shall not be deemed a restriction on the ability to pay dividends or make distributions on Equity Interests),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date, including pursuant to (x) this Indenture, the Notes and the related Guarantees, (y) the 2024 Notes Indenture, the 2024 Notes and the related guarantees and (z) the 2026 Notes Indenture, the 2026 Notes and the related guarantees,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or,
(C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such that restriction is no not materially less favorable favorable, taken as a whole, to the Holders of Notes than those under the agreement evidencing the Debt so Refinanced, or,
(D) resulting from the Incurrence of any Permitted Debt described in clause (b) or (c) of the second paragraph of Section 4.04,
(E) relating to Debt of a Foreign Restricted Subsidiary,
(F) constituting restrictions in connection with a Permitted Receivables Financing,
(G) constituting customary restrictions in joint venture or shareholder agreements relating to any Person that is not a Wholly Owned Restricted Subsidiary,
(H) arising or existing by reason of applicable law or any applicable law, regulationrule, regulation or order, approval, license, permit or similar restrictionor
(I) that will not, in each case issued or imposed by a governmental authoritythe good faith judgment of the Company, andmaterially impair the ability of the Company to make all scheduled payments of principal and interest on the Notes as they come due,
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes and the related Guarantees pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 and that limit the right of the debtor to dispose of the Property securing such that Debt,
(B) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or
(D) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such the sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Issuer or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company Issuer or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date, including, but not limited to the Credit Agreement,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orIssuer,
(C) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(AA), (B), (F), (G), (J) or this clause (C) in Section 4.08, provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Issuer’s Board of Directors in a resolution of the Board of Directors delivered to the Trustee), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (A), (B), (F), (G) or (BJ) above or in this clause (2)(AC), as applicable,
(D) or (B) belowresulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided such that the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Issuer’s Board of Directors in a resolution of the Board of Directors delivered to the Trustee) than those under the agreement evidencing restrictions of the Debt so Refinancedsame type contained in this Indenture, or
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, ; and
(2F) with respect to clause (c) in this Section 4.08 only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,
(BG) encumbering Property at the time such the Property was acquired by the Company Issuer or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
(CH) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or,
(DI) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale,
(J) existing by reason of this Indenture, the Notes offered hereby, the Exchange Notes, and the Note Guarantees,
(K) in respect of any Receivables Subsidiary to the extent set forth in the Accounts Receivable Facility Documents, or
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Issuer’s Board of Directors and otherwise permitted under the Indenture, which limitation is applicable only to the assets that are the subject of such saleagreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:
(ai) (A) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, 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 (B) pay any Indebtedness or other obligations owed to the 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);
(bii) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness Incurred by the Company or any of its Restricted Subsidiary. Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(iii) sell, lease or transfer any of its property or assets to the Company or any of its Restricted Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (i) or (ii) of this Section 3.6(a)).
(b) The foregoing limitations will restrictions in Section 3.6(a) shall not applyprohibit encumbrances or restrictions existing under or by reason of:
(1i) with respect any encumbrance or restriction pursuant to clauses an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes, the Note Guarantees, the Collateral Documents, the Revolving Credit Agreement (aand related documentation), the GM Intercreditor Agreement and the Second Lien Documents (b) and (c), to restrictions:
(Arelated documentation) in effect on such date, or any agreement governing Indebtedness that contains encumbrances and restrictions that are not materially more restrictive, taken as a whole, then those contained in this Indenture, the Note Guarantees, the Revolving Credit Agreement and the Collateral Documents on the Issue Date,;
(Bii) any encumbrance or restriction with respect to a Person pursuant to an agreement relating to Debt any Capital Stock of a Restricted Subsidiary and existing at such Person or Indebtedness Incurred by such Person in effect on or before the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to date on which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the CompanyCompany or any of its Restricted Subsidiaries (other than Capital Stock issued or Indebtedness Incurred as consideration in, oror to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by, merged into or consolidated with the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Company or any of its other Restricted Subsidiaries other than the Person and its Subsidiaries or the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(Ciii) resulting from the Refinancing any encumbrance or restriction pursuant to an agreement effecting a refunding, replacement or refinancing of Debt any Indebtedness Incurred pursuant to an agreement referred to in clause (1)(Ai) or (Bii) above of this Section 3.6(b) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, extension, replacement or refinancing of an agreement referred to in clause (2)(Ai) or (Bii) belowof this Section 3.6(b) or this clause (iii); provided, provided however, that the encumbrances and restrictions with respect to such restriction Restricted Subsidiary contained in any such agreement are not materially more restrictive, taken as a whole, than the encumbrances and restrictions contained in any applicable agreement referred to in clause (i) or (ii) of this Section 3.6(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is no less favorable applicable;
(iv) in the case of Section 3.6(a)(iii), (a) Liens permitted to be Incurred under the provisions of Section 3.5 that apply only to the Holders than those under the agreement evidencing the Debt so Refinanced, orassets subject to such Liens and (b) Receivables sold pursuant to any Permitted Receivables Financing;
(Da) 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 Section 3.6(a)(iii) on the property so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale of all or a portion of the Capital Stock or assets of such Subsidiary;
(vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii) any customary provisions in joint venture agreements relating to joint ventures and other similar agreements entered into in the ordinary course of business; provided that, if such joint venture is a Restricted Subsidiary, such provisions shall not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as reasonably determined by the Company);
(ix) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(x) encumbrances or restrictions arising or existing by reason of applicable lawlaw or any applicable rule, regulation, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2xi) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance with Section 3.3 that are not materially more restrictive, taken as a whole, than those in effect on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level);
(xii) any encumbrance or restriction with respect to clause a Receivables Subsidiary in connection with a Permitted Receivables Financing; provided, however, that such encumbrances and restrictions are necessary or advisable to effect the transactions contemplated under such Permitted Receivables Financing (c) only, to restrictions:as reasonably determined by the Company);
(Axiii) relating any encumbrance or restriction contained in any agreement related to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was assets acquired by the Company or any Restricted Subsidiary, so long as such encumbrance or restriction relates solely to the Property so acquired and (A) was not created entered into in connection with contemplation of the acquisition, and (B) is not applicable to any Person, or in anticipation the properties or assets of such acquisition,any Person, other than the property or assets so acquired;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
(Dxiv) customary restrictions contained in (A) asset sale agreements limiting that limit the transfer of such Property assets pending the closing of such salesale and (B) any other agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition; and
(xv) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to clauses (vi), (xii), (xiii) and (xix) of Section 3.3(b); provided that such encumbrances and restrictions contained in any agreement or instrument shall not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as reasonably determined by the Company).
Appears in 1 contract
Sources: Indenture (American Axle & Manufacturing Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the right ability of any Restricted Subsidiary to:
to (ai) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital StockStock or with respect to any other interest or participation in, or pay any Debt or other obligation owedmeasured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Company or a Restricted Subsidiary,
, (bii) make any loans or advances to the Company or any other Restricted Subsidiary or
or (ciii) transfer any of its Property property or assets to the Company or any other Restricted Subsidiary. The foregoing limitations will not apply:
, except for such encumbrances or restrictions existing under or by reason of (1a) the Credit Facility as in effect on March 31, 1998, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, replacements or refinancings are no more restrictive with respect to clauses such dividend and other payment restrictions than those contained in the Credit Facility (a)or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing, (b) and (c), to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or
(C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right any instrument governing Indebtedness or Capital Stock of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was an Acquired Person acquired by the Company or any of its Restricted Subsidiary, so long Subsidiaries as in effect at the time of such restriction relates solely acquisition (except to the Property so acquired and extent such Indebtedness was not created incurred in connection with or in anticipation contemplation of such acquisition,
); provided, however, that (C1) resulting such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person, and (2) the consolidated net income of an Acquired Person for any period prior to such acquisition shall not be taken into account in determining whether such acquisition was permitted by the terms of the Indenture, (d) by reason of customary non-assignment provisions in leases or other agreements entered into the ordinary course of business and consistent with past practices, (e) Purchase Money Indebtedness for property acquired in the ordinary course of business that only impose restrictions on the property so acquired, (f) an agreement for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 4.17 below; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 270 days after such execution and delivery, or (g) Refinancing Indebtedness permitted under the Indenture; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness are no more restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of leases or customary provisions any lease entered into in other agreements that restrict assignment the ordinary course of business, consistent with past practice, nor (b) Liens permitted under the Indenture, shall in and of themselves be considered a restriction on the ability of the applicable Restricted Subsidiary to transfer such agreements or rights thereunderassets, or
(D) customary restrictions contained in asset sale agreements limiting as the transfer of such Property pending the closing of such salecase may be.
Appears in 1 contract
Sources: Indenture (Terex Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary of the Company to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, 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 owed to the 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, and the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness or other obligation);
(b2) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the 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 or assets to the Company or any of its Restricted Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.09(a)).
(b) The foregoing limitations will preceding provisions shall not applyprohibit encumbrances or restrictions existing under or by reason of:
(1) with respect to clauses this Indenture, the Notes and the Note Guarantees;
(a2) any agreement or instrument existing on the Issue Date (excluding this Indenture, the Notes and the Note Guarantees), (b) and (c), to restrictions:;
(A) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in effect existence at the time of such acquisition (but not created in contemplation thereof) or (B) any agreement or 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 such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary of the Company (but not created in contemplation thereof), in the case of (A) and (B) above, 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 or so designated, as applicable (including after- acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or instrument referred to in clauses (1), (2), (3) or (5) of this Section 4.09(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of Senior Management, not materially more restrictive, when taken as a whole, than the encumbrances and restrictions contained in the agreements referred to in clauses (1), (2), (3) or (5) of this Section 4.09(b) on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at , the time it became a Restricted Subsidiary if such restriction was not created in connection with acquisition date or in anticipation of the transaction or series of transactions pursuant to which date such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by merged into a Restricted Subsidiary of the Company, orwhichever is applicable;
(C5) resulting from the Refinancing Credit Facility, the Second Lien Notes Indenture and any other Indebtedness of Debt Incurred pursuant to an the Company; provided, that the applicable encumbrances and restrictions contained in the agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) belowagreements governing such Indebtedness are not materially more restrictive, provided such restriction is no less favorable to the Holders taken as a whole, than those under contained in the agreement evidencing Credit Facility and the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, Second Lien Notes Indenture as in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:effect on the Issue Date;
(A) relating customary non-assignment or subletting provisions in leases governing leasehold interests to Debt that is permitted the extent such provisions restrict the transfer of the lease or the property leased thereunder and (B) security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to be Incurred and secured without also securing the Notes pursuant extent such encumbrance or restriction restricts the transfer of the property subject to Sections 4.09 and 4.11 such security agreements or mortgages;
(7) in the case of clause (3) of Section 4.09(a), Liens that limit the right of the debtor to dispose of the Property assets securing such Debt,Indebtedness;
(B8) purchase money obligations that impose encumbrances or restrictions of the nature described in clause (3) encumbering Property at of Section 4.09(a) on the time property so acquired;
(9) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Property was acquired Subsidiary;
(10) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(11) any customary provisions in joint venture, partnership, shareholders’ and limited liability company agreements relating to Joint Ventures that are not Restricted Subsidiaries of the Company and other similar agreements entered into in the ordinary course of business;
(12) any customary provisions (including non-assignment and non-transfer provisions) in leases, subleases or licenses (including licenses of intellectual property) and other agreements entered into by the Company or any of its Restricted SubsidiarySubsidiaries in the ordinary course of business;
(13) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, so long regulation, order or permit;
(14) (A) other Indebtedness incurred or Preferred Stock issued by a Guarantor that, in the good faith judgment of Senior Management, are not materially more restrictive, taken as such restriction relates solely a whole, than those applicable to the Property so acquired Company in the Credit Facility and was the Second Lien Notes Indenture as in effect on the Issue Date or (B) other Indebtedness incurred or Preferred Stock issued by a Non-Guarantor; provided that with respect to the foregoing clause (B), such encumbrances or restrictions shall not created materially affect the Company’s ability to make anticipated principal and interest payments on the Notes (in connection with or in anticipation the good faith judgment of such acquisition,Senior Management);
(C15) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, orany agreement with a governmental entity providing for developmental financing;
(D16) customary restrictions contained agreements relating to Hedging Obligations; and
(17) easements entered into in asset sale agreements limiting the transfer ordinary course of such Property pending the closing of such salebusiness.
Appears in 1 contract
Sources: Trust Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer shall not, and shall not permit any Restricted Subsidiary that is not a Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any such Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Issuer or any other Restricted SubsidiaryGuarantor (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Issuer or any other Guarantor (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company Issuer or any other Restricted SubsidiaryGuarantor (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(Ai) in effect on the Issue Date,, including, but not limited to the Credit Agreement and the Existing Notes Indentures;
(Bii) relating with respect to Debt of a Person that becomes a Restricted Subsidiary and existing at the time it became (including any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary in accordance with this Indenture) or merges, consolidates or amalgamates with or into the Issuer or a Restricted Subsidiary on or after the Issue Date, in each case, if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by merged, consolidated or amalgamated with or into the Company, orIssuer or such Restricted Subsidiary;
(Ciii) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai) or (Bii) above or above, in clause (2)(Avi), (vii) or (Bx) belowbelow or this clause (iii), provided that the restriction contained in such restriction amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing (1) in the good faith judgment of the Issuer, will not materially impair the Issuer’s ability to make payments under the Notes when due, (2) applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Debt or (3) is no less favorable to either not materially more restrictive taken as a whole (as conclusively determined in good faith by the Holders Issuer), than those contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable, or with respect to this clause (iii), generally represents market terms (as conclusively determined in good faith by the Issuer) at the time of Incurrence;
(iv) resulting from the Incurrence of any Debt permitted to be Incurred under Section 4.04, provided that the restriction contained in such Debt (1) in the good faith judgment of the Issuer, will not materially impair the Issuer’s ability to make payments under the agreement evidencing Notes when due, (2) applies only during the Debt so Refinancedcontinuance of a default in respect of a payment or financial maintenance covenant relating to such Debt, oror (3) is either not materially more restrictive taken as a whole (as conclusively determined in good faith by the Issuer) than those contained in the Notes, the Existing Notes or the Credit Agreement, or with respect to this clause (3), generally represents market terms (as conclusively determined in good faith by the Issuer) at the time of Incurrence;
(Dv) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2vi) with respect to clause (c) above only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(Bvii) encumbering Property at the time such the Property was acquired by the Company Issuer or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(Cviii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such the agreements or rights thereunder, or;
(Dix) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Issuer’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Issuer’s ability to make principal and interest payments on the Notes;
(xi) existing by reason of this Indenture, the Notes, any exchange notes and the Note Guarantees;
(xii) contained in joint venture agreements, limited liability company agreements, organizational documents and other similar agreements;
(xiii) on cash or other deposits or net worth imposed by customers or suppliers;
(xiv) with respect to clause (c) of the first paragraph of this covenant only, arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(xv) contained in Hedging Obligations;
(xvi) constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing;
(xvii) in the case of any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, restrictions and conditions imposed by its organizational documents or any related joint venture or similar agreement; and
(xviii) resulting from customary provisions, which restrict assignment of the agreements or rights thereunder, in connection with Intellectual Property licenses, covenants not to sue, releases or other similar rights or immunities.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the right ability of any Restricted Subsidiary to:
to (ai) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, Stock or pay any Debt Indebtedness or other obligation owed, obligations owed to the Company or any other Restricted Subsidiary,
Company, (bii) make any loans or advances to the Company or any other Restricted Subsidiary or
(ciii) transfer any of its Property property or assets to the Company Company, except any encumbrance or any other Restricted Subsidiary. The foregoing limitations will not applyrestriction:
(1) with respect pursuant to clauses (a), (b) and (c), to restrictions:
(A) an agreement or instrument in effect at or entered into on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at , any Credit Facility, the time it became a Restricted Subsidiary if such restriction was not created in connection with Existing Indentures, the Existing Notes, this Indenture or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or
(C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, andNotes;
(2) with respect pursuant to clause (c) onlyany agreement or instrument of a Person, to restrictions:
(A) or relating to Debt that Indebtedness or Capital Stock of a Person, which Person is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, so long as such restriction relates solely to or which agreement or instrument is assumed by the Property so acquired and was not created Company or any Restricted Subsidiary in connection with or an acquisition of assets from such Person, as in anticipation effect at the time of such acquisition,, merger or consolidation (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes the Successor Company;
(3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment are not materially less favorable to the Holders of the Notes taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) resulting from contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting subletting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or assignment any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of leases or business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that restrict assignment arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary or (I) pursuant to Hedging Obligations;
(5) 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 substantially all the Capital Stock or assets of such agreements Restricted Subsidiary (or rights thereunder, or
(Dthe property or assets that are subject to such restriction) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such salesale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407, (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition to or by any Receivables Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary,;
(b) make any loans or advances to the Company or any other Restricted Subsidiary Subsidiary; or
(c) transfer any of its Property to the Company or any other Restricted Subsidiary. The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date,;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or;
(C) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, ; provided that (x) such restriction is no less favorable to the Holders in any material respect, as reasonably determined by the Board of Directors or senior management of the Company, than those under the agreement evidencing the Debt so RefinancedRefinanced or (y) the restriction is not materially more restrictive, ortaken as a whole, than customary provisions in comparable financings, as reasonably determined by the Board of Directors or senior management of the Company;
(D) resulting from the Incurrence of any Debt permitted pursuant to Section 4.03; provided that (i) (x) the restriction is not materially more restrictive, taken as a whole, as reasonably determined by the Board of Directors or senior management of the Company, than the restrictions of the same type contained in this Indenture, (y) the restriction is not materially more restrictive, taken as a whole, as reasonably determined by the Board of Directors or senior management of the Company, than the restrictions of the same type contained in the Credit Agreement or (z) the restriction is not materially more restrictive, taken as a whole, than customary provisions in comparable financings, as reasonably determined by the Board of Directors or senior management of the Company, and (ii) that the Board of Directors or senior management of the Company determines, at the time of such financing, will not impair the Company’s ability to make payments as required under the Securities when due;
(E) existing by reason of applicable law, regulationrule, regulation or order;
(F) any contractual requirements incurred with respect to Qualified Receivables Transactions relating exclusively to a Receivables Entity that, approvalin the good faith determination of the principal financial officer of the Company, license, permit are customary for Qualified Receivables Transactions or in a factoring or similar restriction, transaction; or
(G) customary restrictions contained in each case issued or imposed by a governmental authority, joint venture and other similar agreements; and
(2) with respect to clause (c) onlyonly (and clause (a) with respect to clause (F) below), to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes Securities or a Subsidiary Guarantee pursuant to Sections 4.09 4.03 and 4.11 4.05 that limit the right of the debtor to dispose of the Property securing such Debt,;
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or;
(D) customary restrictions contained in asset agreements relating to the sale agreements or other disposition of Property limiting the transfer of such Property pending the closing of such salesale or following such sale if still in the possession of the Company or any of its Subsidiaries;
(E) resulting from purchase money obligations for Property acquired or Capital Lease Obligations that impose restrictions on the Property so acquired;
(F) resulting from restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business or consistent with past practice or industry practice; or
(G) resulting from Liens permitted to be incurred under Section 4.05.
Appears in 1 contract
Sources: Indenture (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Effective Date, including, but not limited to the Credit Agreements,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or,
(C) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(AA) or (B) above or above, in clause (2)(AF), (G) or (BJ) belowbelow or this clause (C), provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company’s Board of Directors in a resolution of the Board of Directors delivered to the Trustee), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (A), (B), (F), (G) or (J) or this clause (C), as applicable,
(D) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors in a resolution of the Board of Directors delivered to the Trustee) than those under the agreement evidencing restrictions of the Debt so Refinancedsame type contained in this Indenture, or
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, ; and
(2F) with respect to clause (c) above only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
(D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such sale.Section 4.04 and
Appears in 1 contract
Sources: Indenture (Mens Wearhouse Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a1) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, Stock to the Company Issuer or any other Restricted Subsidiary,
(b2) pay any Debt or other obligation owed to the Issuer or any other Restricted Subsidiary,
(3) make any loans or advances to the Company Issuer or any other Restricted Subsidiary Subsidiary, or
(c4) transfer any of its Property to the Company Issuer or any other Restricted Subsidiary. .
(b) The foregoing limitations will not apply:
(1) with respect to clauses (aSections 4.13(a)(1), (b2), (3) and (c4), to restrictionsrestrictions which are:
(A) in effect on the Issue Date,Date (as such restrictions may be amended from time to time; provided that any such amendment is not materially more restrictive as to such Restricted Subsidiary);
(B) imposed by the Notes or this indenture, or by indentures governing other Debt the Issuer Incurs (and, if such Debt is Guaranteed, by the guarantors of such Debt) ranking on a parity with the Notes, provided that the restrictions imposed by such indentures are no more restrictive than the restrictions imposed by this Indenture;
(C) imposed by a Credit Facility with respect to Debt permitted to be Incurred on or subsequent to the date hereof pursuant to Section 4.09(b)(1);
(D) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orIssuer or a Restricted Subsidiary (as such restrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary);
(CE) resulting from the Refinancing of Debt Incurred outstanding pursuant to an agreement referred to in clause Section 4.13(b)(1)(A), (1)(AB) or (BD) above or in clause (2)(A) or (B) below, above; provided such restriction is no less favorable in any material respect to the Holders of the Notes than those under the agreement evidencing the Debt so RefinancedRefinanced when taken as a whole;
(F) restrictions on cash or other deposits or net worth imposed by leases or other agreements entered into in the ordinary course of business;
(G) any encumbrances or restrictions required by any foreign or U.S. governmental, local or regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Issuer or any Restricted Subsidiary by such governmental authority;
(H) customary provisions in joint venture or similar agreements or other arrangements with minority investors in Restricted Subsidiaries and cus- tomary provisions in Debt incurred by Restricted Subsidiaries organized outside the United States; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that the Issuer determines that any such encumbrance or restriction will not materially affect the ability of the Issuer to make any anticipated payments of principal or interest on the Notes;
(I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the transfer, disposition or distribution of such Property pending the closing of such sale, including any restriction imposed with respect to such Restricted Subsidiary pursuant to an agreement to dispose of all or substantially all the Capital Stock or assets of such Restricted Subsidiary;
(J) customary restrictions imposed on the transfer of copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or in leases governing leasehold interests;
(K) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions of assets (including Capital Stock) by that Restricted Subsidiary pending its sale or other disposition;
(L) restrictions on Debt Incurred by Non-U.S. Subsidiaries; provided that such restrictions are then customary for Debt of such type Incurred in such jurisdiction; or
(DM) existing by reason of applicable restrictions resulting from any U.S. or foreign law, regulationrule, order, approval, license, permit regulation or similar restriction, in each case issued order applicable to the Issuer or imposed by a governmental authority, andany Restricted Subsidiary.
(2) with respect to clause (cSection 4.13(a)(4) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and the covenant described under Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,;
(B) encumbering Property at the time such Property was acquired by the Company Issuer or any Restricted Subsidiary, so long as such restriction relates restrictions relate solely to the Property so acquired and was were not created in connection with or in anticipation of such acquisition,;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or;
(D) customary restrictions contained imposed by virtue of any transfer of, agreement to transfer, option or right with respect to or Lien on any Property of the Issuer or the relevant Restricted Subsidiary not otherwise prohibited by this Indenture; or
(E) imposed under any Purchase Money Debt or Capital Lease Obligation in asset sale agreements limiting the transfer ordinary course of such business with respect only to the Property pending the closing of such salesubject thereof.
Appears in 1 contract
Sources: Indenture (Pharma Services Intermediate Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary,
(b) make any loans or advances to the Company or any other Restricted Subsidiary Subsidiary, or
(c) transfer any of its Property to the Company or any other Restricted Subsidiary. .
(d) The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or,
(C) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause clauses (1)(AD), (H), (I) or (B) above or in clause (2)(A) or (BP) below, provided such restriction is that the restrictions, taken as a whole, are no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than those under the restrictions of the same type contained in the agreement evidencing the Debt so Refinanced, or,
(D) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restrictions, taken as a whole, are no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture,
(E) existing by reason of applicable law,
(F) constituting Standard Securitization Undertakings relating solely to, regulationand restricting only the rights of, order, approval, license, permit or similar restriction, a Receivables Entity in each case issued or imposed connection with a Qualified Receivables Transaction,
(G) existing pursuant to any Debt Incurred by a governmental authorityForeign Restricted Subsidiary, andwhich restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes;
(2) with respect to clause (c) only, to restrictions:
(AH) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,
(BI) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
(CJ) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or,
(DK) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale, (L) in agreements in respect of Liens permitted to be incurred under Section 4.06 and the security documents relating thereto, that limit the right of the debtor to dispose of the assets subject to such sale.Liens;
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, Stock or pay any Debt Indebtedness or other obligation owed, obligations owed to the Company or any other Restricted Subsidiary,;
(b2) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) sell, lease or transfer any of its Property property or assets to the Company or any Restricted Subsidiary.
(b) However, paragraph (a) of this Section 4.12 will not prohibit:
(1) any encumbrance or restriction pursuant to or by reason of (i) an agreement in effect at or entered into on the Existing Second Lien Notes Issue Date, including, without limitation, the Existing Second Lien Notes Indenture and the security documents entered into in connection therewith and (ii) this Indenture and the Security Documents as in effect on the Issue Date;
(2) 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 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 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 Company or any other Restricted Subsidiary. The foregoing limitations will not apply:Subsidiary other than the assets and property so acquired;
(13) 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 Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to 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 Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(5) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a any Restricted Subsidiary and existing at incorporated or organized outside the time it became a Restricted Subsidiary if such United States, any encumbrance or restriction was not created contained in connection with the terms of any Indebtedness or in anticipation of the transaction or series of transactions any agreement pursuant to which such Restricted Subsidiary became Indebtedness was Incurred if either (a) 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 (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or was acquired by the Company, or
(C) resulting from the Refinancing refinancing of Debt Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (1)(A12) or (B) above or in this clause (2)(A6) of this Section 4.12(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (B1) belowthrough (5), provided clause (12) or this clause (6) of this Section 4.12(b); provided, that the encumbrances and restrictions with respect to such restriction is Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than those under the agreement evidencing encumbrances and restrictions contained in the Debt so Refinancedagreements governing the Indebtedness being refunded, orreplaced or refinanced;
(D7) existing by reason in the case of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c3) onlyof Section 4.12(a) above, to restrictionsany 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 Debt that is permitted 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 be Incurred leasehold interests in Oil and secured Gas Properties), license (including, without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right limitation, licenses of the debtor to dispose of the Property securing such Debt,intellectual property) or other contract;
(B) encumbering Property at contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the 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 such Property was acquired by to time under this Indenture which are not included in the definition of Indebtedness pursuant to clause (3) of the penultimate paragraph of the definition thereof;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, so long as such restriction relates solely ; or
(E) provisions with respect to the Property so acquired disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(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 Section 4.12(a) on the property so acquired;
(9) 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 substantially all of the Capital Stock or assets of such agreements Restricted Subsidiary (or rights thereunder, or
(Dthe property or assets that are subject to such restriction) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such salesale or disposition;
(10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(12) encumbrances or restrictions contained in agreements governing Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Existing Second Lien Notes Issue Date in accordance with Section 4.09; provided, that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than the provisions contained in the First Lien Credit Agreement, and the Existing Second Lien Notes Indenture as in effect on the Existing Second Lien Notes Issue Date;
(13) 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 4.09 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);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(16) any encumbrance or restriction contained in the First Lien Credit Agreement as in effect as of the Existing Second Lien Notes 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 not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the First Lien Credit Agreement as in effect on the Existing Second Lien Notes Issue Date.
Appears in 1 contract
Sources: Indenture (Goodrich Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Corporation shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
to (a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Corporation or any other Restricted Subsidiary,
, (b) make any loans or advances to the Company Corporation or any other Restricted Subsidiary or
Subsidiary, (c) transfer any of its Property to the Company Corporation or any other Restricted Subsidiary or (d) guarantee any Debt of the Corporation or any other Restricted Subsidiary. The foregoing limitations will not apply:
apply (1i) with respect to clauses (a), (b), (c) and (cd), to restrictions:
restrictions (A) in effect on the Issue Date,
▇▇▇▇▇ ▇, ▇▇▇▇, (B▇) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the CompanyCorporation, or
(C) resulting which result from the Refinancing of Debt Incurred pursuant to an agreement referred to in the immediately preceding clause (1)(Ai)(A) or (B) above or in clause (2)(Aii)(A) or (B) below, provided that such restriction is no less favorable to the Holders of 2009 Series Bonds than those under the agreement evidencing the Debt so Refinanced, or
(D) existing on Sales Finance or any other bankruptcy- remote special-purpose Subsidiary of the Corporation that purchases or sells accounts receivable or inventory pursuant to the Credit Facilities or (E) arising or agreed to in a joint venture agreement, entered into by reason the Corporation or a Restricted Subsidiary in the ordinary course of applicable lawbusiness that do not (as determined by the Corporation and certified in a resolution of the Board of Directors or a certificate of the chief financial or chief accounting officer of the Corporation delivered to the Trustee prior to or promptly following such encumbrance or restriction becoming effective), regulationindividually or in the aggregate, order, approval, license, permit (1) detract from the value of property or similar restriction, assets of the Corporation or any Restricted Subsidiary in each case issued any manner material to the Corporation or imposed by a governmental authority, and
any Restricted Subsidiary or (2) materially adversely affect the Corporation's ability to make principal or interest payments on the 2009 Series Bonds and (ii) with respect to clause (c) only, to restrictions:
restrictions (A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.05 and 4.11 Section 4.12 of the Original Indenture that limit the right of the debtor to dispose of the Property securing such Debt,
, (B) encumbering Property at the time such Property was acquired by the Company Corporation or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
, (C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
thereunder or (D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such sale.
Appears in 1 contract
Sources: Eleventh Supplemental Indenture (National Steel Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the right ability of any Restricted Subsidiary to:
to (a) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, Stock to the Company or a Restricted Subsidiary or pay any other Restricted Subsidiary,
Indebtedness owed to the Company, (b) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property property or assets to the Company or any other Restricted Subsidiary. The foregoing limitations will not applyCompany, except:
(1) with respect any encumbrance or restriction pursuant to clauses (a)an agreement in effect at or entered into on the Issue Date or, (b) and (c)in the case of the Credit Agreement, to restrictions:
(A) as in effect on the Issue Acquisition Closing Date,;
(B2) relating any encumbrance or restriction with respect to Debt of a Restricted Subsidiary and existing at the time it became a pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary if on or prior to the date on which such restriction Restricted Subsidiary was not created in connection with acquired by the Company (other than Indebtedness Incurred as consideration in, or in anticipation to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or) and outstanding on such date;
(C3) resulting from the Refinancing of Debt Incurred any encumbrance or restriction pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason effecting a Refinancing of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
(D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such sale.Indebtedness
Appears in 1 contract
Sources: Indenture (Fairchild Semiconductor International Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not applyapply to:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) restrictions in effect on the Issue Date,, including, but not limited to the Credit Agreement;
(B2) restrictions relating to Debt any agreements or instruments of a Restricted Subsidiary and Person existing at the time it became a Restricted Subsidiary or to any agreements or instruments relating to any Property at the time acquired by the Company or any Restricted Subsidiary, in each case if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company, orCompany or a Restricted Subsidiary;
(C3) restrictions that result from any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt or other agreement or instrument referred to in this Section 4.08, provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in this Section 4.08, as applicable;
(4) restrictions resulting from the Refinancing Incurrence of any Permitted Debt Incurred pursuant to an agreement referred to defined in clause (1)(A) or (B) above or in clause (2)(A) or (B) belowSection 4.04, provided such that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(D5) restrictions existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(26) with respect to clause (c(c) above only, to restrictions:
(A) restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(B7) restrictions encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(C) 8) restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(D9) restrictions which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(10) restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes;
(11) restrictions existing by reason of the Note Documents;
(12) restrictions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(14) in the case of the provision described in clause (c) of this Section 4.08, restrictions arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(15) restrictions contained in Hedging Obligations;
(16) restrictions constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing;
(17) with respect to clause (c) above only, restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the ordinary course for the employment, charter or other hire of such property;
(18) with respect to clause (c) above only, restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
(19) restrictions on cash or other deposits or net worth imposed by customers, suppliers or vendors pursuant to contracts entered into in the ordinary course of business;
(20) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary; and
(21) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments.”
Appears in 1 contract
Sources: Indenture (Valaris LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
: (a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, Stock (it being understood that the priority of any Preferred Stock in receiving dividend or pay any Debt or other obligation owed, liquidating distributions prior to the Company dividends or any other Restricted Subsidiary,
liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock), (b) make any loans or advances to the Company or any other Restricted Subsidiary oror pay any Debt or other obligation owed, to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances or pay Debt or other obligation), or 85
(c) sell, lease or transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
apply to: (1) with respect to clauses (a), (b) and (c), to restrictions:
(A) restrictions in effect or entered into on the Issue Date,
, including, but not limited to the Super Senior Revolving Credit Facility, this Indenture, the Notes and the Notes Guarantees; (B2) restrictions relating to Debt any agreements or instruments of a Restricted Subsidiary and Person existing at the time it became a Restricted Subsidiary or to any agreements or instruments relating to any Property at the time acquired by the Company or any Restricted Subsidiary, in each case if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company or a Restricted Subsidiary; (3) restrictions that result from any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt or other agreement or instrument referred to in this Section 4.08, provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company), or
taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in this Section 4.08, as applicable; (C4) restrictions resulting from the Refinancing Incurrence of any Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) belowaccordance with Section 4.04, provided such that either (1) the restriction is no less favorable to the Holders holders of Notes in any material respect (as determined in good faith by the Company) than those under the agreement evidencing restrictions of the Debt so Refinanced, or
same type contained in this Indenture or (D2) the Company reasonably determined in good faith that such restrictions are not reasonably likely to impair the Issuers’ ability to make principal and interest payments on the Notes; (5) restrictions existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
; (26) with respect to clause (c) of this Section 4.08 only, to restrictions:
(A) restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose Dispose of the Property securing such that Debt,
; (B7) restrictions encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
; (C) 8) restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without 86 limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or
; (D9) restrictions which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale; (10) restrictions existing pursuant to any Debt Incurred , which restrictions are customary for a financing of such sale.type, and which are otherwise permitted under this Indenture, provided, however, that the Company reasonably determines in good faith that such restrictions are not reasonably likely to impair the Issuers ability to make principal and interest payments on the Notes; (11) restrictions existing by reason of the Note Documents; (12) restrictions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business; (13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (14) in the case of the provision described in clause (c) of the first paragraph of this Section 4.08, restrictions arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof; (15) restrictions contained in Hedging Obligations; (16) restrictions constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing or Permitted Supply Chain Financing; (17) with respect to clause (c) of this Section 4.08 only, restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the ordinary course for the employment, charter or other hire of such property; (18) with respect to clause (c) of this Section 4.08 only, restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
Appears in 1 contract
Sources: Indenture (Borr Drilling LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, Stock or pay any Debt Indebtedness or other obligation owed, obligations owed to the Company or any other Restricted Subsidiary,;
(b2) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) sell, lease or transfer any of its Property property or assets to the Company or any Restricted Subsidiary.
(b) However, paragraph (a) of this Section 7.25 will not prohibit:
(1) 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 and the Security Documents as in effect on such date;
(2) 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 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 Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided, however that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary. The foregoing limitations will not apply:Subsidiary other than the assets and property so acquired;
(13) 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 Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to 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, however 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 Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(5) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a any Restricted Subsidiary and existing at incorporated or organized outside the time it became a Restricted Subsidiary if such United States, any encumbrance or restriction was not created contained in connection with the terms of any Indebtedness or in anticipation of the transaction or series of transactions any agreement pursuant to which such Restricted Subsidiary became Indebtedness was Incurred if either (a) 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 (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or was acquired by the Company, or
(C) resulting from the Refinancing refinancing of Debt Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (1)(A12) or (B) above or in this clause (2)(A6) of this Section 7.25(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (B1) belowthrough (5), provided clause (12) or this clause (6) of this Section 7.25(b); provided, however that the encumbrances and restrictions with respect to such restriction is Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than those under the agreement evidencing encumbrances and restrictions contained in the Debt so Refinancedagreements governing the Indebtedness being refunded, orreplaced or refinanced;
(D7) existing by reason in the case of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c3) onlyof Section 7.25(a) above, to restrictionsany 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 Debt that is permitted 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 be Incurred leasehold interests in Oil and secured Gas Properties), license (including, without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right limitation, licenses of the debtor to dispose of the Property securing such Debt,intellectual property) or other contract;
(B) encumbering Property at contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the 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 such Property was acquired by to time under this Indenture which are not included in the definition of Indebtedness pursuant to clause (3) of the penultimate paragraph of the definition thereof;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, so long as such restriction relates solely ; or
(E) provisions with respect to the Property so acquired disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(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 Section 7.25
(a) on the property so acquired;
(9) 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 substantially all of the Capital Stock or assets of such agreements Restricted Subsidiary (or rights thereunder, or
(Dthe property or assets that are subject to such restriction) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such salesale or disposition;
(10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(12) encumbrances or restrictions contained in agreements governing Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 7.22; provided, however that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than the provisions contained in the First Lien Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, however that issuance of such Preferred Stock is permitted pursuant to Section 7.22 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);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(16) any encumbrance or restriction contained in the First Lien 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, however that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the First Lien Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Goodrich Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary of the Company to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, 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 owed to the 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, and the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness or other obligation);
(b2) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the 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 or assets to the Company or any of its Restricted Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.08(a)).
(b) The foregoing limitations will preceding provisions shall not applyprohibit encumbrances or restrictions existing under or by reason of:
(1) with respect to clauses this Indenture, the Notes, the Note Guarantees and the Collateral Documents;
(a2) any agreement or instrument existing on the Issue Date (excluding this Indenture, the Notes, the Note Guarantees and the Collateral Documents), (b) and (c), to restrictions:;
(A) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in effect existence at the time of such acquisition (but not created in contemplation thereof) or (B) any agreement or 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 such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary of the Company (but not created in contemplation thereof), in the case of (A) and (B) above, 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 or so designated, as applicable (including after-acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or instrument referred to in clauses (1), (2) or (3) of this Section 4.08(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of Senior Management, not materially more restrictive, when taken as a whole, than the encumbrances and restrictions contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.08(b) on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at , the time it became a Restricted Subsidiary if such restriction was not created in connection with acquisition date or in anticipation of the transaction or series of transactions pursuant to which date such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by merged into a Restricted Subsidiary of the Company, orwhichever is applicable;
(C5) resulting from the Refinancing Credit Facility of Debt Incurred pursuant the Company or any Restricted Subsidiary permitted to an be incurred under this Indenture; provided, that the applicable encumbrances and restrictions contained in the agreement referred or agreements governing such Credit Facility are not materially more restrictive, taken as a whole, than those contained in the Credit Facility as in effect on the Issue Date;
(6) (A) customary non-assignment or subletting provisions in leases governing leasehold interests to in clause (1)(A) the extent such provisions restrict the transfer of the lease or the property leased thereunder and (B) above security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(7) in the case of clause (2)(A3) or (B) belowof Section 4.08(a), provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is Liens permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 incurred under Section 4.12 that limit the right of the debtor to dispose of the Property assets securing such Debt,Indebtedness;
(B8) purchase money obligations, Capitalized Lease Obligations and Sale/Leaseback Transactions permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) encumbering Property at of Section 4.08(a) on the time property so acquired;
(9) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Property was acquired Subsidiary;
(10) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(11) any customary provisions in joint venture, partnership, shareholders’ and limited liability company agreements relating to Joint Ventures that are not Restricted Subsidiaries of the Company and other similar agreements entered into in the ordinary course of business;
(12) any customary provisions (including non-assignment and non-transfer provisions) in leases, subleases or licenses (including licenses of intellectual property) and other agreements entered into by the Company or any of its Restricted SubsidiarySubsidiaries in the ordinary course of business;
(13) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, so long regulation, order or permit;
(14) (A) other Indebtedness incurred or Preferred Stock issued by a Guarantor in accordance with Section 4.09 that, in the good faith judgment of Senior Management, are not materially more restrictive, taken as such restriction relates solely a whole, than those applicable to the Property so acquired Company in this Indenture on the Issue Date (which results in encumbrances or restrictions at a Restricted Subsidiary of the Company level comparable to those applicable to the Company in this Indenture) or (B) other Indebtedness incurred or Preferred Stock issued by a Non-Guarantor, in each case permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09; provided that with respect to the foregoing clause (B), such encumbrances or restrictions shall not materially affect the Company’s ability to make anticipated principal and was not created interest payments on the Notes (in connection with or in anticipation the good faith judgment of such acquisition,Senior Management);
(C15) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, orany agreement with a governmental entity providing for developmental financing;
(D16) customary restrictions contained agreements relating to Hedging Obligations permitted under clause (7) of Section 4.09(b); and
(17) easements entered into in asset sale agreements limiting the transfer ordinary course of such Property pending the closing of such salebusiness.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property properties or assets to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will shall not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,, including pursuant to the Credit Agreement;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orParent Guarantor;
(C) resulting that result from any amendment, restatement, modification, renewal, supplement, extension or replacement of an agreement referred to in clauses (A), (B), (F), (G), (J) or this clause (C) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred pursuant to an agreement thereunder); provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Parent Guarantor), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clause clauses (1)(AA), (B), (F), (G) or (BJ) above or in this clause (2)(AC) in this second paragraph of Section 4.08, as applicable;
(D) resulting from the Incurrence of any Permitted Debt as defined in paragraph (b) of Section 4.04; provided that if the obligor of such Debt is the Issuer or (B) belowa Subsidiary Guarantor, provided such the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Parent Guarantor) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2F) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property properties or assets securing such that Debt,;
(BG) encumbering Property properties or assets at the time such Property was the properties and assets were acquired by the Company Parent Guarantor or any Restricted Subsidiary, so long as such the restriction relates solely to the Property properties and assets so acquired and was not created in connection with or in anticipation of such the acquisition,;
(CH) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(DI) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property property or assets pending the closing of the sale;
(J) existing by reason of this Indenture, the Notes, the Note Guarantees and the Security Documents;
(K) any Debt or contractual requirements Incurred with respect to a Qualified Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of such agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary,
(b) make any loans or advances to the Company or any other Restricted Subsidiary Subsidiary, or
(c) transfer any of its Property to the Company or any other Restricted Subsidiary. .
(d) The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or,
(C) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause clauses (1)(AD), (H), (I) or (B) above or in clause (2)(A) or (BP) below, provided such restriction is that the restrictions, taken as a whole, are no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than those under the restrictions of the same type contained in the agreement evidencing the Debt so Refinanced, or,
(D) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restrictions, taken as a whole, are no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture,
(E) existing by reason of applicable law,
(F) constituting Standard Securitization Undertakings relating solely to, regulationand restricting only the rights of, order, approval, license, permit or similar restriction, a Receivables Entity in each case issued or imposed connection with a Qualified Receivables Transaction,
(G) existing pursuant to any Debt Incurred by a governmental authorityForeign Restricted Subsidiary, andwhich restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes;
(2) with respect to clause (c) only, to restrictions:
(AH) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,
(BI) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
(CJ) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or,
(DK) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale,
(L) in agreements in respect of Liens permitted to be incurred under Section 4.06 and the security documents relating thereto, that limit the right of the debtor to dispose of the assets subject to such saleLiens;
(M) contained in agreements governing Hedging Obligations permitted under the indenture;
(N) relating to 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 4.04 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);
(O) in Debt Incurred or Capital Stock issued by any Restricted Subsidiary; provided that the restrictions contained in the agreements or instruments governing such Debt or Capital Stock (x) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (y) will not materially affect the Company’s ability to pay all principal, interest and premium, if any, on the notes, as determined in good faith by the Company;
(P) in any agreement or other instrument of a Unrestricted Subsidiary that is designated a Restricted Subsidiary, in each case that is in existence at the time of such designation (but not created in contemplation of or in connection thereof);
(Q) in or in respect of Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments to the extent such encumbrance or restriction restricts the transfer of the property (including Capital Stock) subject to such Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments,
(R) on cash or other deposits or net worth requirements or similar requirements, imposed by suppliers, landlords or customers or required by insurance, security or bonding companies, or
(S) contained in contracts entered into in the ordinary course of business, not relating to any Debt, and that do not, taken as a whole, detract from the value of, or from the ability of the Company and its Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary, as determined in good faith by the Company.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company An Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any of its Restricted Subsidiary Subsidiaries to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt Indebtedness or other obligation owed, owed to the Company such Issuer or any of its other Restricted SubsidiarySubsidiaries,
(b) make any loans or advances to the Company such Issuer or any of its other Restricted Subsidiary Subsidiaries or
(c) transfer any of its Property to the Company such Issuer or any of its other Restricted SubsidiarySubsidiaries. The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) arising under agreements of such Issuer and any of its Restricted Subsidiaries (as of the Issue Date) that were in effect on the Issue Date, including with respect to the Exchange Notes,
(B) arising under Credit Facilities; provided such restrictions are no more restrictive than those contained in the Credit Agreement as in effect on the Issue Date,
(BC) relating to Debt Indebtedness of a such Issuer's Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orsuch Issuer or another of its Restricted Subsidiaries,
(CD) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) belowIndebtedness, provided such restriction is no less favorable to the Holders more restrictive than those under the agreement evidencing the Debt Indebtedness so Refinanced,
(E) required by any governmental body or regulatory authority having jurisdiction over such Issuer or any of its Restricted Subsidiaries or any of their businesses or any rule, regulation, order or applicable law,
(F) with respect to the disposition or distribution of assets or Property in joint venture and other similar agreements entered into in the ordinary course of business, or
(DG) existing by reason of applicable law, regulation, order, approval, license, permit on cash or similar restriction, in each case issued or other deposits imposed by a governmental authority, customers under contracts entered into in the ordinary course of business; and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt Indebtedness that is permitted to be Incurred and and/or secured without also securing the Notes pursuant to Sections 4.09 and 4.11 Section 4.07 and/or Section 4.14, as applicable, that limit the right of the debtor to dispose of the Property securing such DebtIndebtedness,
(B) encumbering Property at the time such Property was acquired by the Company such Issuer or any of its Restricted SubsidiarySubsidiaries, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
(D) customary restrictions contained in asset sale or stock purchase agreements limiting the transfer of such Property, or payments, dividends or other distributions by any Restricted Subsidiary (including Capital Stock of a Restricted Subsidiary and Property of any such Restricted Subsidiary subject to a pending sale) pending the closing of such sale.
Appears in 1 contract
Sources: Indenture (Consolidated Communications Texas Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(Ai) (a) in effect on the Issue Date,, including, but not limited to the Existing Credit Agreement, the Existing Notes Indenture and the USD Indenture, and (b) under the New Credit Agreement;
(Bii) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or;
(Ciii) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai)or (ii) above, in clause (vi), (vii) or (Bx) above below or in this clause (2)(Aiii), provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company’s Board of Directors), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (Bx) belowor this clause (iii), as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided such that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(Dv) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2vi) with respect to clause (c) above only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(Bvii) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(Cviii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(Dix) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes; or
(xi) existing by reason of this Indenture, the Notes and the Note Guarantees;
(xii) with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(xiii) on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiv) in the case of the provision described in clause (c) of the first paragraph of this covenant; arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(xv) contained in Hedging Obligations; and
(xvi) constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary,
(b) make any loans or advances to the Company or any other Restricted Subsidiary Subsidiary, or
(c) transfer any of its Property to the Company or any other Restricted Subsidiary. .
(d) The foregoing limitations will not apply:
(1i) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date (or with respect to Sealy or any of its Subsidiaries, in effect on the Escrow Release Date),
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or,
(C) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai)(A) or (B) above or in clause (2)(Aii)(A) or (B) below, provided such that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than those under the restrictions of the same type contained in the agreement evidencing the Debt so Refinanced, or,
(D) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture,
(E) existing by reason of applicable law,
(F) constituting Standard Securitization Undertakings relating solely to, regulationand restricting only the rights of, ordera Receivables Entity in connection with a Qualified Receivables Transaction, approval, license, permit or similar restriction, in each case issued or imposed or
(G) existing pursuant to any Debt Incurred by a governmental authorityForeign Restricted Subsidiary, which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes; and
(2ii) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,
(B) encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or
(D) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such the sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property properties or assets to the Company Parent Guarantor or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will shall not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(A) in effect on the Issue Date,, including pursuant to the Credit Agreement;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orParent Guarantor;
(C) resulting that result from any amendment, restatement, modification, renewal, supplement, extension or replacement of an agreement referred to in clauses (A), (B), (F), (G), (J) or this clause (C) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred pursuant to an agreement thereunder); provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Parent Guarantor), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clause clauses (1)(AA), (B), (F), (G) or (BJ) above or in this clause (2)(AC) in this second paragraph of Section 4.08, as applicable;
(D) resulting from the Incurrence of any Permitted Debt as defined in paragraph (b) of Section 4.04; provided that if the obligor of such Debt is the Issuer or (B) belowa Subsidiary Guarantor, provided such the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Parent Guarantor) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(DE) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2F) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property properties or assets securing such that Debt,;
(BG) encumbering Property properties or assets at the time such Property was the properties and assets were acquired by the Company Parent Guarantor or any Restricted Subsidiary, so long as such the restriction relates solely to the Property properties and assets so acquired and was not created in connection with or in anticipation of such the acquisition,;
(CH) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(DI) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property property or assets pending the closing of the sale;
(J) existing by reason of this Indenture, the Notes and the Note Guarantees;
(K) any Debt or contractual requirements Incurred with respect to a Qualified Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of such agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not applyapply to:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) restrictions in effect on the Issue Date,, including, but not limited to the Credit Agreement;
(B2) restrictions relating to Debt any agreements or instruments of a Restricted Subsidiary and Person existing at the time it became a Restricted Subsidiary or to any agreements or instruments relating to any Property at the time acquired by the Company or any Restricted Subsidiary, in each case if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company, orCompany or a Restricted Subsidiary;
(C3) restrictions that result from any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt or other agreement or instrument referred to in this Section 4.08, provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Company), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in this Section 4.08, as applicable;
(4) restrictions resulting from the Refinancing Incurrence of any Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) belowaccordance with Section 4.04, provided such that either (1) the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company) than those under the agreement evidencing restrictions of the Debt so Refinancedsame type contained in this Indenture or the Credit Agreement, oror (2) the Company reasonably determines in good faith that such restrictions are not reasonably likely to impair the Issuers’ ability to make principal and interest payments on the Notes;
(D5) restrictions existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, andApplicable Law;
(26) with respect to clause (c) above only, to restrictions:
(A) restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(B7) restrictions encumbering Property at the time such the Property was acquired by the Company or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(C) 8) restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(D9) restrictions which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(10) restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Company reasonably determines in good faith that such restrictions are not reasonably likely to impair the Issuers’ ability to make principal and interest payments on the Notes;
(11) restrictions existing by reason of the Note Documents;
(12) restrictions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(14) in the case of the provision described in clause (c) of this Section 4.08, restrictions arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(15) restrictions contained in Hedging Obligations;
(16) with respect to clause (c) above only, restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the ordinary course for the employment, charter or other hire of such property;
(17) with respect to clause (c) above only, restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
(18) restrictions on cash or other deposits or net worth imposed by customers, suppliers or vendors pursuant to contracts entered into in the ordinary course of business;
(19) encumbrances or restrictions applicable only to a Restricted Subsidiary that is a Foreign Subsidiary or to any Restricted Subsidiary that is not a Guarantor; and
(20) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments.”
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the right ability of any Restricted Subsidiary to:
(a1) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, 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 owed to the Company or any Restricted Subsidiary,Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any it being understood that the subordination of its Property loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary. The foregoing limitations will Subsidiary shall not applybe deemed a restriction on the ability to make loans or advances);
(3) grant Liens upon any of the assets of such Restricted Subsidiary that is a Subsidiary Guarantor to secure the Notes Obligations; or
(4) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above).
(b) Section 4.08(a) shall not prohibit encumbrances or restrictions existing under or by reason of:
(1) with respect to clauses (a), (b) and (c), to restrictions:the Senior Credit Facility or any other agreement or instrument in effect at or entered into on the Effective Date;
(A2) in effect on this Indenture, the Issue Date,Notes and the Subsidiary Guarantees;
(B3) relating to Debt any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary and existing Subsidiaries in existence at the time it became a Restricted Subsidiary if of such restriction was acquisition, merger or consolidation (but not created in connection with contemplation thereof), which encumbrance or in anticipation restriction is not applicable to any Person, or the property or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the transaction Person and its Subsidiaries, so acquired (including after-acquired property and assets);
(4) any amendment, restatement, modification, renewal, supplement, extension, refunding, replacement or series refinancing of transactions pursuant an agreement referred to which in clauses (1) through (13) of this Section 4.08(b); provided, however, that the encumbrances or restrictions contained in such amendment, restatement, modification, renewal, supplement, extension, refunding, replacement or refinancing is, in the good faith judgment of the Company, not materially more restrictive, taken as a whole, than the encumbrances and restrictions contained in any of the agreements or instruments referred to in clauses (1) through (13), as applicable, of this Section 4.08(b) on the Effective Date, the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired by merged or consolidated with or into the CompanyCompany or a Restricted Subsidiary, or
(C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and
(2) with respect to clauses (5) through (13) of this Section 4.08(b), the date such original agreement was initially tested under such clause, whichever is applicable;
(5) in the case of clause (c4) onlyof Section 4.08(a), to restrictions:
(A) relating to Debt that is Permitted Liens or Liens otherwise permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 incurred under Section 4.12 that limit the right of the debtor to dispose of the Property securing property or assets subject to such Debt,Liens;
(B6) encumbering Property at purchase money obligations, mortgage financings, Capital Lease Obligations and similar obligations or agreements permitted under this Indenture, in each case, that impose encumbrances or restrictions of the time nature described in clause (3) or (4) of Section 4.08(a) with respect to the property or assets acquired, financed, designed, leased, constructed, repaired, maintained, installed or improved in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(7) agreements for the sale, transfer or other disposition of property or assets, including without limitation customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale, transfer or other disposition of all or a portion of the Capital Stock, property or assets of such Property was acquired Subsidiary;
(8) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(9) any provisions in joint venture agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) as determined in good faith by an Officer of the Company (as evidenced by an Officers’ Certificate), do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due;
(10) any provisions in leases, subleases, licenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due, as determined in good faith by an Officer of the Company (as evidenced by an Officers’ Certificate);
(11) applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(12) non-assignment provisions or restrictions on subletting in any contract or any lease of any Restricted Subsidiary entered into in the ordinary course of business; or
(13) Credit Facilities or other debt arrangements incurred by the Company or any Restricted Subsidiary, so long or Preferred Stock issued by any Restricted Subsidiary, in accordance with Section 4.09, that are not materially more restrictive, when taken as such restriction relates solely a whole, than those applicable in either this Indenture or the Senior Credit Facility on the Effective Date which, as determined in good faith by an Officer of the Company (as evidenced by an Officers’ Certificate), do not adversely affect the Company’s ability to make payments of principal or interest payments on the Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, or
(D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such saleNotes when due.
Appears in 1 contract
Sources: Indenture (Fortrea Holdings Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the right ability of any Restricted Subsidiary to:
to (ai) pay dividends, in cash or otherwise, dividends or make any other distributions on or in respect of its Capital Stock, Stock or pay any Debt Indebtedness or other obligation owed, obligations owed to the Company or any other Restricted Subsidiary,
Company, (bii) make any loans or advances to the Company or any other Restricted Subsidiary or
(ciii) transfer any of its Property property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other Restricted Subsidiary. The foregoing limitations obligation, will not applybe deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) with respect pursuant to clauses (a), (b) and (c), to restrictions:
(A) an agreement or instrument in effect at or entered into on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary and existing at , any Credit Facility, this Indenture or the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or
(C) resulting from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders than those under the agreement evidencing the Debt so Refinanced, or
(D) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, andNotes;
(2) with respect pursuant to clause (c) onlyany agreement or instrument of a Person, to restrictions:
(A) or relating to Debt that Indebtedness or Capital Stock of a Person, which Person is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, so long as such restriction relates solely to or which agreement or instrument is assumed by the Property so acquired and was not created Company or any Restricted Subsidiary in connection with or an acquisition of assets from such Person, as in anticipation effect at the time of such acquisition,, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) pursuant to an agreement or instrument (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an "Initial Agreement") or contained in any amendment, supplement or other modification to an Initial Agreement (an "Amendment"); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) resulting from contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting subletting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or assignment any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of leases or business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that restrict assignment arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) 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 substantially all the Capital Stock or assets of such agreements Restricted Subsidiary (or rights thereunder, or
(Dthe property or assets that are subject to such restriction) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such salesale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (RSC Holdings Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary,;
(b) make any loans or advances to the Company or any other Restricted Subsidiary Subsidiary; or
(c) transfer any of its Property to the Company or any other Restricted Subsidiary. The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date,;
(B) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, or;
(C) resulting that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such restriction is no less favorable to the Holders in any material respect, as reasonably determined by the Board of Directors (as evidenced by a Board Resolution), than those under the agreement evidencing the Debt so Refinanced, or;
(D) resulting from the Incurrence of any Debt permitted pursuant to Section 4.03, provided that (i) the restriction is no -------- less favorable to the Holders in any material respect, as reasonably determined by the Board of Directors (as evidenced by a Board Resolution), than the restrictions of the same type contained in this Indenture and (ii) the Board of Directors determines (as evidenced by a Board Resolution) in good faith that such restrictions will not impair the ability of the Company to make payments of principal and interest on the Securities when due;
(E) existing by reason of applicable law, regulation, order, approval, license, permit or similar restriction; or
(F) any contractual requirements incurred with respect to Qualified Receivables Transactions relating exclusively to a Receivables Entity that, in each case issued or imposed by a governmental authoritythe good faith determination of the Board of Directors, are customary for Qualified Receivables Transactions; and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 4.03 and 4.11 4.05 that limit the right of the debtor to dispose of the Property securing such Debt,;
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, ; or
(D) customary restrictions contained in asset agreements relating to the sale agreements or other disposition of Property limiting the transfer of such Property pending the closing of such sale.
Appears in 1 contract
Sources: Indenture (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of any Restricted Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company Issuer or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Company Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(c) sell, lease or transfer any of its Property to the Company Issuer or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above). The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), apply to restrictions:
(Ai) (a) in effect on the Issue Date,, including, but not limited to the Existing Credit Agreement, the Existing Notes Indenture and the EUR Indenture, and (b) under the New Credit Agreement;
(Bii) relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, orIssuer;
(Ciii) resulting that result from the any amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing of Debt Incurred pursuant to an agreement referred to in clause (1)(Ai) or (Bii) above or above, in clause (2)(Avi), (vii) or (Bx) belowbelow or this clause (iii), provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Issuer’s Board of Directors), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Issuer’s Board of Directors) than those under the agreement evidencing restrictions of the Debt so Refinanced, orsame type contained in this Indenture;
(Dv) existing by reason of applicable law, regulationrule, regulation or order, approval, license, permit or similar restriction, in each case issued or imposed by a governmental authority, and;
(2vi) with respect to clause (c) above only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Sections 4.09 Section 4.04 and 4.11 Section 4.06 that limit the right of the debtor to dispose of the Property securing such that Debt,;
(Bvii) encumbering Property at the time such the Property was acquired by the Company Issuer or any Restricted Subsidiary, so long as such the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such the acquisition,;
(Cviii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of such the agreements or rights thereunder, or;
(Dix) which are customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such saletype, and which are otherwise permitted under this Indenture, provided, however, that the Issuer’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Issuer’s ability to make principal and interest payments on the Notes; or
(xi) existing by reason of this Indenture, the Notes, and the Note Guarantees;
(xii) with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(xiii) on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiv) in the case of the provision described in clause (c) of the first paragraph of this covenant; arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(xv) contained in Hedging Obligations; and
(xvi) constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of a Permitted Receivables Financing.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)