Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; (2) make loans or advances to the Company or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason of (i) Indebtedness as in effect on the date of this Indenture; (ii) the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture; (iii) this Indenture and the Securities; (iv) applicable law; (v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture; (vi) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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; (vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired;
Appears in 2 contracts
Sources: Indenture (Portola Packaging, Inc. Mexico, S.A. De C.V.), Indenture (Portola Packaging Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will be deemed not to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); 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 in contemplation agreement or instrument of such acquisitionPerson 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 or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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 encumbrance such Refinancing Agreement or restriction is not applicable Amendment relates (as determined in good faith by the Company);
(4) (A) pursuant to any Personagreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the properties subletting, assignment or assets transfer of any Personproperty or asset subject thereto, other than the Person(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, or (3I) above pursuant to Hedging Obligations or Bank Products Obligations;
(5) with respect to any agreement for the direct or indirect disposition of Capital Stock of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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 any Issuer’s ability to make principal or interest payments on the property so acquired;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 or Indebtedness of 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 2 contracts
Sources: Indenture (Univar Solutions Inc.), Indenture (Univar Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The (a) Neither the Company will notnor the Issuer shall, and will not nor shall they permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create enter into, incur or otherwise cause or suffer permit to exist or become effective any encumbrance agreement or restriction on other consensual arrangement that prohibits, restricts or imposes any condition upon the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any of its Equity Interests to the Company, the Issuer or any Restricted Subsidiary or repay Indebtedness or other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness obligations owed to the Company Company, the Issuer or any Restricted Subsidiary (it being understood that the priority of its Restricted Subsidiariesany 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 Equity Interests);
(2) make loans or advances to the Company Company, the Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company, the Issuer or any of its the Restricted SubsidiariesSubsidiaries to other Indebtedness Incurred by the Company, the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to pay any Indebtedness or other Obligations); or
(3) sell, lease or transfer any of its properties property or assets to the Company Company, the Issuer or any Restricted Subsidiary;
(b) The foregoing provision will not apply:
(1) in the case of its Restricted SubsidiariesSections 4.6(a)(1), except for such encumbrances (2) and (3), to:
(A) restrictions and conditions imposed by law, rule, regulation or restrictions existing under order or by reason ofthe Notes, the Note Guarantees or this Indenture or any agreement or document evidencing Refinancing Indebtedness in respect of the Notes; provided that the restrictions and conditions contained in any such agreement or document, taken as a whole, are not less favorable in any material respect to the Holders than the restrictions and conditions imposed by this Indenture;
(iB) Indebtedness restrictions and conditions, including those imposed by the Revolving Credit Agreement and related documentation, the BNDES Loans and related documentation and other agreements or instruments, as in effect on the date Issue Date;
(C) in the case of any Person that is not a wholly owned subsidiary, restrictions and conditions imposed by its organizational documents or any related joint venture or similar agreements; provided that such restrictions and conditions apply only to such Person and its subsidiaries and to the Equity Interests of such Person and its subsidiaries;
(D) customary restrictions and conditions contained in agreements relating to the sale of all or a portion of the Equity Interests of a Restricted Subsidiary or any assets of the Company, the Issuer or any Restricted Subsidiary, in each case pending such sale; provided that such restrictions and conditions apply only to such Restricted Subsidiary and its subsidiaries or the assets that are to be sold and, in each case, such sale is permitted under this Indenture;
(iiE) restrictions and conditions existing on the Credit Facility as Issue Date (or any extension or renewal of, or any amendment, modification or replacement, not expanding the scope of, any such restriction or condition);
(F) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or instrument referred to in effect as of the date of this IndentureSections 4.6(b)(1)(A), and any (B) or (E); provided, however, that such amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofare, provided that such amendmentsin the good faith judgment of an executive officer of the Company, modificationsnot materially more restrictive, restatementswhen taken as a whole, renewalsthan the encumbrances and restrictions contained in the agreements referred to in Sections 4.6(b)(1)(A), increases(B) or (E);
(G) (i) other Indebtedness Incurred, supplementsor Preferred Stock or Disqualified Equity Interests issued, refundingsin each case, replacements or refinancings in accordance with Section 4.4 that, in the good faith judgment of an executive officer of the Company, are not materially more restrictive, taken as a whole, than those applicable to the Company in this Indenture on the Distribution Date (which results in encumbrances or restrictions at a Restricted Subsidiary level or at the Issuer comparable to those applicable to the Company) or (ii) other Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.4; provided that with respect to clause (ii), such dividend encumbrances or restrictions will not materially affect the Company’s ability to make anticipated principal and other payment restrictions than those contained interest payments on the Notes (in the Credit Facility as in effect on good faith judgment of an executive officer of the date of this IndentureCompany at the time such encumbrances or restrictions are entered into);
(iiiH) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness restrictions on cash or Capital Stock of a Person acquired other deposits or net worth imposed by the Company customers, suppliers or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(vi) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar landlords under contracts entered into in the ordinary course of business and consistent with past practices or business;
(I) any encumbrance or restriction contained effected in mortgagesconnection with a Qualified Receivables Financing that, pledges in the good faith determination of the Issuer, is necessary or advisable to effect such Qualified Receivables Financing; and
(J) restrictions and conditions imposed by any agreement relating to Indebtedness of any Person (other than an Unrestricted Subsidiary) in existence at the time such Person became a Restricted Subsidiary and otherwise permitted under Section 4.4(b)(7), if such restrictions and conditions apply only to such Restricted Subsidiary;
(2) in the case of Section 4.6(a)(3), to:
(A) customary provisions in leases, licenses and similar agreements restricting the subletting, assignment or transfer of the property subject to such lease, license or similar agreement; and
(B) security agreements permitted under this Indenture or mortgages securing Indebtedness of the Company or a Restricted Subsidiary of the Company to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired;.
Appears in 2 contracts
Sources: Indenture (Alcoa Upstream Corp), Indenture (Alcoa Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries 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 ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness or other obligations owed to the Company or any of its Restricted SubsidiariesSubsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of its loans or advances made to the Company or any Restricted SubsidiariesSubsidiary 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
(3) sell, lease or transfer any of its properties property or assets to the Company or any Restricted Subsidiary.
(b) However, paragraph (a) of its Restricted Subsidiaries, except for such encumbrances this Section 4.12 will not prohibit:
(1) any encumbrance or restrictions existing under restriction pursuant to or by reason of
(i) Indebtedness 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 the date of this Indenturesuch date;
(ii2) the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements encumbrance or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, restriction with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect 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 of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a 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 its 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 Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with Subsidiary or in contemplation of the transaction) and outstanding on such acquisition)date; provided, which that any such encumbrance or restriction is shall not applicable extend to any Person, assets or property of the properties Company or assets of any Person, other Restricted Subsidiary other than the Personassets and property so acquired;
(3) 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 Person, so acquired, provided 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 Consolidated Cash Flow 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 Person is not taken into account Unrestricted Subsidiary;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in determining whether such acquisition was permitted by the terms of this Indentureany Indebtedness or any agreement pursuant to which such 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;
(vi6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) 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 (1) through (5), clause (12) or this clause (6) of this Section 4.12(b); provided, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (3)) of Section 4.12(a) above, customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the 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;
(viiC) contained in any agreement creating Hedging Obligations permitted from time 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; or
(E) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(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) above 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 Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale 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 4.09; 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 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 4.09 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 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 Issue Date.
Appears in 2 contracts
Sources: Indenture (Goodrich Petroleum Corp), Purchase Agreement (Goodrich Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The (a) Except as provided in Section 3.10(b), the Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any of its other Restricted Subsidiaries (A) on its Capital Stock Subsidiary or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its other Restricted SubsidiariesSubsidiary;
(2ii) make loans or advances to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Company or any of its other Restricted Subsidiaries; orSubsidiary.
(3b) Section 3.10(a) shall not apply to encumbrances or restrictions existing as of the Issue Date or otherwise under or by reason of:
(i) applicable law;
(ii) the Collateral Documents;
(iii) any agreements governing any First Priority Lien Obligations or Second Priority Lien Obligations (including this Indenture and the Second Lien Notes Indenture);
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any of its properties asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) existing with respect to any Person, or to the property or assets to of any Person, at the time the Person is acquired by the Company or any of its Restricted Subsidiaries, except for such which encumbrances or restrictions existing under (1) are not applicable to any other Person or by reason of
the property or assets of any other Person and (i2) Indebtedness as were not put in effect on the date place in anticipation of this Indenture;
(ii) the Credit Facility as in effect as of the date of this Indenture, such event and any amendments, modifications, restatementsextensions, renewals, increases, supplements, refundings, replacements or refinancings thereof, of any of the foregoing; provided that such amendmentsthe encumbrances and restrictions in the extension, modificationsrenewal, restatements, renewals, increases, supplements, refundings, replacements replacement or refinancings are not materially more restrictiverefinancing are, taken as a whole, no less favorable in any material respect to the Holders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(vi) restrictions with respect to one of the Company’s Subsidiaries and imposed pursuant to an agreement that has been entered into for the sale or disposition of the Capital Stock of, or property and assets of, such Subsidiary that is permitted by Section 3.7;
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials; or
(viii) an agreement governing Indebtedness Incurred to refinance the Indebtedness issued, assumed or Incurred pursuant to Section 3.10(b)(iii); provided, that such refinancing agreement is not materially more restrictive with respect to such dividend and other payment encumbrances or restrictions than those contained in the Credit Facility as agreements governing the Indebtedness referred to in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisitionSection 3.10(b)(iii), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(vi) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired;.
Appears in 2 contracts
Sources: Indenture (Iusacell S a De C V), Indenture (Mexican Cellular Investments Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) However, except for such Section 4.13(a) will not apply to encumbrances or restrictions existing under or by reason of:
(i1) Existing Indebtedness as in effect on the date of this Indenturehereof;
(ii2) this Indenture or the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureNotes;
(iii3) this Indenture and the Securitiesapplicable law, rules or regulations;
(iv) applicable law;
(v4) any instrument governing Indebtedness (including Acquired Debt) or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that that, in the Consolidated Cash Flow case of Indebtedness, such Person is not taken into account in determining whether such acquisition Indebtedness was permitted by the terms of this IndentureIndenture to be incurred;
(vi5) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts agreements entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementspractices;
(vii6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause Section 4.13(a)(3);
(37) above any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(9) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) the Senior Credit Agreement and related agreements as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; provided that the encumbrances or restrictions in such Credit Facilities are not materially more restrictive to the borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of this Indenture (other than encumbrances or restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or all of the purchase price of a Restricted Subsidiary and which only apply to the Restricted Subsidiary so acquired and such Restricted Subsidiary’s assets);
(14) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any other Persons or the property so acquired;or assets of any other Person; provided that such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividends or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Euro Indenture (JSG Acquisitions I), Dollar Indenture (JSG Acquisitions I)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness or other obligations owed to the Company or any of its Restricted SubsidiariesCompany;
(2) make any loans or advances to the Company or any of its Restricted SubsidiariesCompany; or
(3) transfer any of its properties property or assets to the Company or any of its Restricted SubsidiariesCompany, except for such encumbrances or restrictions existing under or by reason ofexcept:
(iA) Indebtedness as any encumbrance or restriction pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the date of this IndentureClosing Date;
(iiB) the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements encumbrance or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such dividend and other payment restrictions than those contained in the Credit Facility as in effect on Restricted Subsidiary prior to the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of its the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiaries as in effect at Subsidiary became a Restricted Subsidiary or was otherwise acquired by the time of Company) and outstanding on such acquisition date;
(except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which C) any encumbrance or restriction is not applicable pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(3)(A) or Section 4.05(3)(B) or this Section 4.05(3)(C) or contained in any Personamendment to an agreement referred to in Section 4.05(3)(A) or Section 4.05(3)(B) or this Section 4.05(3)(C); provided, however, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the properties or assets of any Person, other Holders than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of encumbrances and restrictions contained in such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenturepredecessor agreements;
(viD) in the case of clause (3Section 4.05(3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction restriction
(i) 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 such lease, license or other contract; or
(ii) contained in mortgages, pledges or and other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements;
(viiE) with respect to a Restricted Subsidiary, any restriction imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(F) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided, however, that such restrictions apply only to such Receivables Entity;
(G) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause Section 4.05(3);
(3H) above provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(I) restrictions on cash or other deposits or net worth imposed by customers, suppliers or, in the ordinary course of business, other third parties; and
(J) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness, or any agreement pursuant to which such Indebtedness was issued, if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, or
(ii) at the time such Indebtedness is Incurred, such encumbrance or restriction is not expected to materially affect the Company's ability to make principal or interest payments on the property so acquired;Securities, as determined in good faith by a Financial Officer of the Company, whose determination shall be conclusive.
Appears in 2 contracts
Sources: Indenture (Goodyear Tire & Rubber Co /Oh/), Indenture (Goodyear Tire & Rubber Co /Oh/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, as in effect at the time of such acquisition 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 in contemplation agreement or instrument of such acquisitionPerson 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 encumbrance such Refinancing Agreement or restriction 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 not applicable subject to any Persona lease, license or similar contract, or the properties assignment or assets transfer of any Personlease, license or other than the Personcontract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired 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 impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, (3I) above pursuant to Hedging Obligations or (J) in connection with or relating to any Vehicle Rental Concession Right;
(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 Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale 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 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 property so acquired;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, (C) relating to Indebtedness of or a Franchise Financing Disposition by or to or in favor of any Franchisee or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (D) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 2 contracts
Sources: Indenture (Hertz Global Holdings Inc), Indenture (Hertz Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, as in effect at the time of such acquisition 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 in contemplation agreement or instrument of such acquisitionPerson 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 encumbrance such Refinancing Agreement or restriction 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 not applicable subject to any Persona lease, license or similar contract, or the properties assignment or assets transfer of any Personlease, license or other than the Personcontract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired 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 impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, or (3I) above 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 Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale 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 property so acquired;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 2 contracts
Sources: Indenture (Sally Beauty Holdings, Inc.), Indenture (Johnsondiversey Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (i) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary (other than a Guarantor) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Guarantor) to:;
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness or other obligations owed to the Company Issuer or any of its Restricted SubsidiariesSubsidiary;
(2) make any loans or advances to the Company Issuer or any of its Restricted SubsidiariesSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries, except for such Subsidiary;
(ii) The preceding provisions will not prohibit encumbrances or restrictions existing under or by reason of:
(i1) Indebtedness as in effect on the date of this Indenture;
(ii) the Credit Facility as contractual encumbrances or restrictions pursuant to agreements or instruments in effect as of the date of Issue Date;
(2) this Indenture, the Notes and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureNote Guarantees;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v3) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect existence at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or but not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property properties or assets of the PersonPerson and its Subsidiaries, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indentureacquired (including after acquired property);
(vi4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2), (3) or (4) of this Section 4.1(h)(ii); provided that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive than the encumbrances and restrictions contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.1(h)(ii) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of clause (3Section 4.1(h)(i)(3), customary non-assignment Liens permitted to be Incurred under the provisions in leases, licenses or similar contracts entered into in of Section 4.1(g) that limit the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness right of the Company or a Restricted Subsidiary debtor to the extent such encumbrances or restrictions restrict the transfer dispose of the property subject to assets securing such mortgages, pledges or other security agreementsIndebtedness;
(vii6) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case that impose encumbrances or restrictions of the nature described in clause (3) above of Section 4.1(h)(i) on the property so acquired;
(7) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Issuer 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 Subsidiary;
(8) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business and with the approval of the Board of Directors;
(9) customary non-assignment provisions in leases, subleases or licenses and other similar agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; and
(11) contained in the terms governing any Indebtedness if (as determined in good faith by the Issuer) (i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Issuer or any Guarantor to make payments on the Notes or (y) in the case of any Refinancing Indebtedness, are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those contained in the agreements governing the Indebtedness being refinanced.
Appears in 2 contracts
Sources: Indenture (Auna S.A.), Indenture (Auna S.A.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) However, except for such Section 4.13(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(i1) Existing Indebtedness as in effect on the date of this Indenturehereof;
(ii2) the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements the Notes or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureSubsidiary Guarantee;
(iii3) this Indenture and the Securitiesapplicable law, rules or regulations;
(iv) applicable law;
(v4) any instrument governing Indebtedness (including Acquired Debt) or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that PROVIDED that, in the Consolidated Cash Flow case of Indebtedness, such Person is not taken into account in determining whether such acquisition Indebtedness was permitted by the terms of this IndentureIndenture to be incurred;
(vi5) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts agreements entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementspractices;
(vii6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause Section 4.13(a)(3) hereof;
(37) above any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(9) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) the Senior Credit Agreement as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; PROVIDED that the encumbrances or restrictions in such Credit Facilities are not materially more restrictive to the borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of this Indenture (other than encumbrances or restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or all of the purchase price of a Restricted Subsidiary and which only apply to the Restricted Subsidiary so acquired and such Restricted Subsidiary's assets);
(14) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; PROVIDED that such restrictions apply only to such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any other Persons or the property so acquired;or assets of any other Person; PROVIDED that such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividends or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (iA) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2B) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3C) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries. However, except for such the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(i1) Existing Indebtedness as in effect on the date of this Indenturehereof;
(ii2) the Credit Facility as in effect as of Take-Out Securities, the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements guarantee thereof by the Subsidiary Guarantor or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureSubsidiary Guarantee;
(iii3) this Indenture and the Securitiesapplicable law, rules or regulations;
(iv) applicable law;
(v4) any instrument governing Indebtedness (including Acquired Debt) or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred Incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(vi) that, in the case of clause Indebtedness, such Indebtedness was permitted to be Incurred by the terms hereof;
(3), customary 5) non-assignment provisions in leases, licenses or similar contracts agreements entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementspractices;
(vii6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3C) above of the preceding paragraph;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(9) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) the Senior Facilities Agreement as in effect on the date hereof;
(12) restrictions on the transfer of assets subject to any Lien permitted hereunder imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance herewith; provided that the encumbrances or restrictions in such Credit Facilities are not materially more restrictive to the borrower than those applicable to the borrower under the Senior Facilities Agreement as in effect on the date hereof (other than encumbrances or restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or all of the purchase price of a Restricted Subsidiary and which only apply to the Restricted Subsidiary so acquired and such Restricted Subsidiary's assets);
(14) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiary owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any other Persons, or the property so acquired;or assets of any other Person; provided that such Indebtedness was permitted by the terms hereof; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividends or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, the Existing Unsecured Notes, the Existing Unsecured Notes Indenture, this Indenture, the Notes or the Notes Collateral Documents;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); 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 in contemplation agreement or instrument of such acquisitionPerson 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 or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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 encumbrance such Refinancing Agreement or restriction is not applicable Amendment relates (as determined in good faith by the Company);
(4) (A) pursuant to any Personagreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the properties subletting, assignment or assets transfer of any Personproperty or asset subject thereto, other than the Person(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, or (3I) above pursuant to Hedging Obligations or Bank Products Obligations;
(5) with respect to any agreement for the direct or indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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 property so acquired;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 or Indebtedness of 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 (US Foods Holding Corp.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (i) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary (other than a Guarantor) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Guarantor) to:;
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness or other obligations owed to the Company Issuer or any of its Restricted SubsidiariesSubsidiary;
(2) make any loans or advances to the Company Issuer or any of its Restricted SubsidiariesSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries, except for such Subsidiary;
(ii) The preceding provisions will not prohibit encumbrances or restrictions existing under or by reason of:
(i1) Indebtedness as in effect on the date of this Indenture;
(ii) the Credit Facility as contractual encumbrances or restrictions pursuant to agreements or instruments in effect as of the date of Issue Date;
(2) this Indenture, the Notes and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureNote Guarantees;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v3) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect existence at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or but not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property properties or assets of the PersonPerson and its Subsidiaries, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indentureacquired (including after acquired property);
(vi4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2), (3) or (4) of this Section 4.1(h)(ii); provided that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive than the encumbrances and restrictions contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.1(h)(ii) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of clause (3Section 4.1(h)(i)(3), customary non-assignment Liens permitted to be Incurred under the provisions in leases, licenses or similar contracts entered into in of Section 4.1(g) that limit the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness right of the Company or a Restricted Subsidiary debtor to the extent such encumbrances or restrictions restrict the transfer dispose of the property subject to assets securing such mortgages, pledges or other security agreementsIndebtedness;
(vii6) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case that impose encumbrances or restrictions of the nature described in clause (3) above of Section 4.1(h)(i) on the property so acquired;
(7) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Issuer 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 Subsidiary;
(8) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business and with the approval of the Board of Directors;
(9) customary non-assignment provisions in leases, subleases or licenses and other similar agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; and
(11) contained in the terms governing any Indebtedness if (as determined in good faith by the Issuer) (i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Issuer or any Guarantor to make payments on the Notes or (y) in the case of any Refinancing Indebtedness, are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those contained in the agreements governing the Indebtedness being refinanced.
Appears in 1 contract
Sources: Indenture (Auna S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, the Senior ABL Facility, the Senior Term Facility, the Opco Senior Notes Documents, the Opco Senior Notes, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise Incurred in connection with, such acquisition, merger, consolidation or transaction); 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 in contemplation agreement or instrument of such acquisitionPerson 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 or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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, which encumbrance or restriction is not applicable determination shall be conclusive);
(4) (A) pursuant to any Personagreement or instrument that restricts in a customary manner (as determined in good faith by the Company, which determination shall be conclusive) the assignment or transfer thereof, or the properties subletting, assignment or assets transfer of any Personproperty or asset subject thereto, other than the Person(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions (as determined in good faith by the Company, pledges which determination shall be conclusive) restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits or net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions (as determined in good faith by the Company, which determination shall be conclusive) contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or Bank Products Obligations or (J) that arises under the terms of documentation governing any factoring agreement or any similar arrangements that in the good faith determination of the Company, which determination shall be conclusive, are necessary or appropriate to effect such factoring agreement or similar arrangements;
(5) with respect to any agreement for the direct or indirect sale or other disposition of Capital Stock, property or assets of any Person, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or other 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as an Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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, which determination shall be conclusive) 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, which determination shall be conclusive) and either (x) the Company determines in good faith, which determination shall be conclusive, 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 under a circumstance described in clause Section 601(viii) below or in respect of a payment or financial covenant relating to such Indebtedness, (3B) above on the property so acquired;relating to any sale of receivables by or Indebtedness of 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 (Core & Main, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary toto take the following actions:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiaries;
(2) make any loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties property or assets to the Company or any of its Restricted Subsidiaries, except for such .
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(i1) The Company’s senior credit facility, and any additional agreements governing Indebtedness as in effect existing on the date of this Indenture;
(ii) the Credit Facility , in each case, as in effect as of on the date of this Indenture, and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, of those agreements; provided that such the amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect those agreements on the date of this Indenture;
(iii2) this Indenture Indenture, the Notes and the Securitiesnote guarantees;
(iv3) applicable law;any restriction with respect to a Restricted Subsidiary that is either:
(vA) pursuant to an agreement relating to any instrument governing Indebtedness (i) Incurred by a Restricted Subsidiary before the date on which such Restricted Subsidiary was acquired by the Company, or Capital Stock (ii) of another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person and is outstanding on the date of such acquisition, merger or consolidation; provided that any restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to Indebtedness Incurred either as consideration in, or for the provision of any portion of the funds or credit support used 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 such acquisition of assets, merger or consolidation shall not be permitted pursuant to this clause (A); or
(B) pursuant to any agreement, not relating to any Indebtedness, existing when a Person becomes a Subsidiary of the Company or acquired by the Company or any of its Restricted Subsidiaries as Subsidiaries, that, in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or each case, is not created in contemplation of such acquisitionPerson becoming such a Subsidiary or such acquisition (it being understood for purposes of this clause (B) that if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed by the Company when such Person becomes the Successor Company), and, in the case of clauses (A) and (B), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property properties or assets of the Person, so acquired;
(4) any restriction with respect to a Restricted Subsidiary pursuant to an agreement (a “Refinancing Agreement”) that effects a refinancing, extension, renewal or replacement of Indebtedness under an agreement referred to in this Section 4.08 (an “Initial Agreement”) or contained in any amendment to an Initial Agreement; provided that the Consolidated Cash Flow restrictions contained in any such Refinancing Agreement or amendment are not materially more restrictive, taken as a whole, than the restrictions contained in the Initial Agreement or Agreements to which such Refinancing Agreement or amendment relates;
(5) any restriction that is a customary restriction on subletting, assignment or transfer of such Person any property or asset that is subject to a lease, license, asset sale or similar contract, or on the assignment or transfer of any lease, license or other contract;
(6) any restriction by virtue of a transfer, agreement to transfer, option, right, or Lien with respect to any property or assets of the Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
(vi7) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements;
(vii8) any restriction with respect to a Restricted Subsidiary, or any of its property or assets, imposed pursuant to an agreement for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary, or the property or assets that are subject to such restriction, pending the closing of such sale or disposition;
(9) purchase money obligations for any restriction existing by reason of applicable law, rule, regulation or order;
(10) provisions limiting the disposition or distribution of assets or property acquired in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(11) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business business;
(12) restrictions existing under Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that impose such restrictions apply only to such Receivables Subsidiary;
(13) restrictions contained in Indebtedness incurred by a Foreign Subsidiary that is permitted to be incurred pursuant to Section 4.09 hereof; provided that such restrictions relate only to one or more Foreign Subsidiaries; or
(14) restrictions contained in Indebtedness that is permitted to be incurred pursuant to Section 4.09 hereof; provided that such restrictions are not materially more restrictive, taken as a whole, than the restrictions permitted by clauses (1) and (2) of the nature described in clause (3) above on the property so acquired;this paragraph.
Appears in 1 contract
Sources: Indenture (Nutra Sales Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or 61 participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) However, except for such Section 4.13(a) will not apply to encumbrances or restrictions existing under or by reason of:
(i1) Existing Indebtedness as in effect on the date of this Indenturehereof;
(ii2) this Indenture or the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureNotes;
(iii3) this Indenture and the Securitiesapplicable law, rules or regulations;
(iv) applicable law;
(v4) any instrument governing Indebtedness (including Acquired Debt) or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that PROVIDED that, in the Consolidated Cash Flow case of Indebtedness, such Person is not taken into account in determining whether such acquisition Indebtedness was permitted by the terms of this IndentureIndenture to be incurred;
(vi5) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts agreements entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementspractices;
(vii6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause Section 4.13(a)(3);
(37) above any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(9) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) the Senior Credit Agreement as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; PROVIDED that the encumbrances or restrictions in such Credit Facilities are not materially more restrictive to the borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of this Indenture (other than encumbrances or restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or all of the purchase price of a Restricted Subsidiary and which only apply to the Restricted Subsidiary so acquired and such Restricted Subsidiary's assets);
(14) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; PROVIDED that such restrictions apply only to such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any other Persons or the property so acquired;or assets of any other Person; PROVIDED that such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividends or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Euro Indenture (MDCP Acquisitions I)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) (i) pay dividends 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 of its other Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted SubsidiariesSubsidiary;
(2) make any loans or advances to the Company or any of its other Restricted SubsidiariesSubsidiary; or
(3) transfer any of its properties or assets Property to the Company or any other Restricted Subsidiary.
(b) The limitations set forth in subsection (a) of its this Section 1010 will not apply:
(1) with respect to clauses (1), (2) and (3) of subsection (a) of this Section 1010, to restrictions:
(A) in effect on the Issue Date (and restrictions pursuant to the Notes, the Notes Guarantees, the Security Documents, this Indenture and the ABL Facility);
(B) imposed on a Restricted SubsidiariesSubsidiary and existing at the time it became a Restricted Subsidiary if such restrictions were 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;
(C) that result from the Refinancing or subsequent Refinancing of Debt Incurred pursuant to an agreement, except for such encumbrances instrument or contract referred to in subclause (A), (B), (E), (F), (H), (I), (J) or (K) of this clause (1) of subsection (b) of this Section 1010, provided that the restrictions existing under or by reason of
(i) Indebtedness as of any such agreement, instrument or contract are not, in effect on the date of this Indenture;
(ii) the Credit Facility as in effect as good faith judgment of the date of this IndentureCompany, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictiveless favorable, taken as a whole, with respect to such dividend and other payment restrictions the Holders than those contained in under the Credit Facility as in effect on agreement evidencing the date of this IndentureDebt so Refinanced;
(iiiD) this Indenture and the Securitiesexisting by virtue of, or arising under, applicable law, regulation, order, approval, license, permit, grant or similar restriction, in each case issued or imposed by a governmental authority;
(ivE) applicable law;
(v) under any agreement, instrument governing Indebtedness or Capital Stock of contract affecting Property or a Person at the time such Property or Person was acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition (except restriction relates solely to the extent such Indebtedness Property or Person so acquired and was incurred not created in connection with or in contemplation anticipation of such acquisition);
(F) under or in connection with any joint venture agreements, which encumbrance or restriction is not applicable to any Personpartnership agreements, or the properties or assets of any Personstock sale agreements, asset sale agreements and other than the Person, or the property or assets of the Person, so acquiredsimilar agreements, provided that the Consolidated Cash Flow of any such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(vi) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts agreements are entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent good faith and that such encumbrances or restrictions restrict the transfer of the property subject to are reasonably customary for such mortgages, pledges or other security agreements;
(viiG) purchase money obligations for property acquired under any customary provisions with respect to cash or other deposit or net worth requirements under agreements, instruments or contracts entered into in the ordinary course of business that impose restrictions business;
(H) under any agreement entered into in connection with the Incurrence of Debt of the nature type described in clause (j) of the definition of “Permitted Debt”;
(I) under any customary provisions under any agreements, instruments or contracts relating to any Receivables Program;
(J) under any customary provisions under any agreements, instruments or contracts relating to any Synthetic Lease or Sale and Leaseback Transaction relating to the Office Campus;
(K) under any agreement, instrument or contract relating to (i) Debt that is permitted under Section 1008 to be Incurred pursuant to clause (b) of the definition of “Permitted Debt” or (ii) Pari Passu Lien Obligations;
(L) under any agreement, instrument or contract entered into in connection with any transactions relating to tax planning strategies of the Company and its Restricted Subsidiaries; provided that all such transactions are between or among Restricted Subsidiaries, the Company and any trustee, transfer agent or escrow agent relating to such tax planning strategies, or any combination of the foregoing parties;
(M) any restriction with respect to property or assets subject to a Permitted Lien imposed by the secured party;
(N) customary provisions in joint venture agreements or arrangements and other similar agreements relating solely to such joint venture;
(O) customary restrictions and conditions contained in any agreement or document related to any Permitted Lien so long as such restrictions or conditions relate only to the assets subject to such Lien; and
(P) existing with respect to any Unrestricted Subsidiary at the time it is designated a Restricted Subsidiary (other than restrictions incurred in contemplation of such designation).
(2) Only with respect to clause (3) above of subsection (a) of this Section 1010 to:
(A) customary provisions restricting subletting or assignment of leases or customary provisions in licenses or other agreements that restrict assignment of such agreements or rights thereunder;
(B) customary provisions restricting the sale or other disposition of Property contained in agreements limiting the transfer of Property pending the closing of such sale; and
(C) restrictions on the property so sale or other disposition of Property acquired;, constructed, improved or leased (and any additions, parts, attachments, fixtures, leasehold improvements, proceeds, improvements or accessions related thereto) in whole or in part under any agreement, instrument or contract relating to Debt permitted under Section 1008 to be Incurred under clause (c) of the definition of “Permitted Lien.”
Appears in 1 contract
Sources: Indenture (Sanmina Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) (ia) pay dividends 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 Borrower or any of its other Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted SubsidiariesSubsidiary;
(2b) make any loans or advances to the Company Borrower or any of its other Restricted SubsidiariesSubsidiary; or
(3c) transfer any of its properties or assets Property to the Company Borrower or any of its other Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason ofSubsidiary. The foregoing limitations will not apply:
(i1) Indebtedness as with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the date of this IndentureClosing 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 Borrower;
(C) 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 such restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than those under the agreement evidencing the Debt so Refinanced;
(D) resulting from the Incurrence of any Debt permitted pursuant to Section 6.01; provided that (i) (x) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in this Agreement, or (y) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in the Senior Credit Agreement and (ii) the Credit Facility as Board of Directors determines in effect as good faith that such restrictions will not impair the ability of the date Borrower to make payments of this Indenture, principal and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect interest on the date of this IndentureTerm Loans when due;
(iiiE) this Indenture and the Securities;
(iv) existing by reason of applicable law;
(vF) any instrument governing Indebtedness contractual requirements incurred with respect to Qualified Receivables Transactions relating exclusively to a Receivables Entity that, in the good faith determination of the principal financial officer of the Borrower, are customary for Qualified Receivables Transactions; or
(G) customary restrictions contained in joint venture and other similar agreements; and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred without also securing the Term Loans or Capital Stock a Subsidiary Guarantee and secured pursuant to Sections 6.01 and 6.03 that limit the right of a Person the debtor to dispose of the Property securing such Debt;
(B) encumbering Property at the time such Property was acquired by the Company Borrower or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition (except restriction relates solely to the extent such Indebtedness Property so acquired and was incurred not created in connection with or in contemplation anticipation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(viC) 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;
(D) customary restrictions contained in agreements relating to the sale or other disposition of Property limiting the transfer of such Property pending the closing of such sale;
(E) resulting from purchase money obligations for Property acquired in the case ordinary course of clause business or Capital Lease Obligations that impose restrictions on the Property so acquired; or
(3), customary non-assignment provisions in leases, licenses F) resulting from restrictions on cash or similar other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired;business.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) (ia) pay dividends 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 Borrower or any of its other Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted SubsidiariesSubsidiary;
(2b) make any loans or advances to the Company Borrower or any of its other Restricted SubsidiariesSubsidiary; or
(3c) transfer any of its properties or assets Property to the Company Borrower or any of its other Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason ofSubsidiary. The foregoing limitations will not apply:
(i1) Indebtedness as with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the date of this IndentureClosing Date;
(iiB) the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock Debt of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect Subsidiary and existing at the time of it became a Restricted Subsidiary if such acquisition (except to the extent such Indebtedness restriction was incurred not created in connection with or in contemplation anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower;
(C) 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 such restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than those under the agreement evidencing the Debt so Refinanced;
(D) resulting from the Incurrence of any Debt permitted pursuant to Section 6.01; provided that (i) (x) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in this Agreement, or (y) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in the Senior Credit Agreement and (ii) the Board of Directors determines in good faith that such restrictions will not impair the ability of the Borrower to make payments of principal and interest on the Term Loans when due;
(E) existing by reason of applicable law; or
(F) any contractual requirements incurred with respect to Qualified Receivables Transactions relating exclusively to a Receivables Entity that, in the good faith determination of the principal financial officer of the Borrower, 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 without also securing the Term Loans or a Subsidiary Guarantee and secured pursuant to Sections 6.01 and 6.03 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 Borrower 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(viC) 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;
(D) customary restrictions contained in agreements relating to the sale or other disposition of Property limiting the transfer of such Property pending the closing of such sale;
(E) resulting from purchase money obligations for Property acquired in the case ordinary course of clause business or Capital Lease Obligations that impose restrictions on the Property so acquired; or
(3), customary non-assignment provisions in leases, licenses F) resulting from restrictions on cash or similar other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired;business.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) (ia) pay dividends 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 or any of its other Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted SubsidiariesSubsidiary;
(2b) make any loans or advances to the Company Parent or any of its Restricted SubsidiariesSubsidiary; or
(3c) transfer any of its properties or assets Property to the Company Parent or any of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason ofSubsidiary. The foregoing limitations will not apply:
(i1) Indebtedness as with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the date of this IndentureExisting Debt;
(iiB) (x) relating to Debt of a Restricted Subsidiary existing at the Credit Facility as in effect as of the date of this Indenturetime it became a Restricted Subsidiary, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, (y) provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are restriction was not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred created in connection with or in contemplation anticipation of the transaction or series of transactions pursuant to which such acquisition), which encumbrance or Restricted Subsidiary became a Restricted Subsidiary and (z) provided such restriction is not applicable to any Person, or the properties or assets of any Person, Persons other than such Restricted Subsidiary; or
(C) that result from the PersonRefinancing 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 such restriction is no more restrictive than those contained in such Refinanced Debt;
(D) existing under or by reason of applicable law, decree, regulation or the property rule;
(E) to any amendment or assets modification of the Persona restriction permitted by clause (1)(A), so acquired(B) or (C) above, provided that such restriction as amended or modified is no more restrictive than the Consolidated Cash Flow of restriction prior to such Person is not taken into account in determining whether such acquisition was permitted by amendment or modification; and
(F) to the terms of this Indentureany Debt permitted to be incurred by clause (h) or (i) under Section 4.10 was incurred; provided that (i) the Parent reasonably determines at the time any such Debt is incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such restriction will not materially affect the Parent’s and the Issuer’s ability to make principal or interest payments on the Notes and (ii) the restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financings or agreements (as determined by the Parent in good faith).
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured pursuant to Sections 4.10 and 4.12 that limit the right of the debtor to dispose of the Property securing such Debt;
(viB) encumbering Property at the time such Property was acquired by the Parent or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in the case connection with or in anticipation of clause such acquisition;
(3), C) resulting from customary non-provisions restricting subletting or assignment of leases or customary provisions in leases, licenses other agreements that restrict assignment of such agreements or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction rights thereunder; or
(D) customarily contained in mortgages, pledges or other security asset sale agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict limiting the transfer of such Property pending the property subject to closing of such mortgages, pledges or other security agreements;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired;sale.
Appears in 1 contract
Sources: Indenture (P T Indosat TBK)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, the Existing Unsecured Notes, the Existing Unsecured Notes Indenture, this Indenture, the Notes, the Notes Collateral Documents, the Unsecured Notes or the indenture with respect thereto;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with or in contemplation of with, such acquisition, merger, consolidation or transaction); provided that for purposes of this clause (2), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, if a Person other than the PersonCompany is the Successor Company with respect thereto, any Subsidiary thereof or the property agreement or assets of the Person, so acquired, provided that the Consolidated Cash Flow instrument of such Person is not taken into account in determining whether or any such acquisition was permitted Subsidiary shall be deemed acquired or assumed, as the case may be, by the terms of this IndentureCompany or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(vi3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in the case clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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);
(4) pursuant to customary non-assignment provisions in leases, licenses or joint venture agreements and other similar contracts agreements entered into in the ordinary course of business and consistent business;
(5) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (B) by virtue of any transfer of, agreement to transfer, option or right with past practices respect to, or Lien on, any property or assets of the Company or any encumbrance or restriction Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, or (3I) above pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(6) with respect to any agreement for the direct or indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(7) 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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 property so acquired;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 or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Receivables Subsidiary.
Appears in 1 contract
Sources: Indenture (L Brands, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, the Existing Unsecured Notes, the Existing Unsecured Notes Indentures, the Existing Secured Notes, the Existing Secured Notes Indenture, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with or in contemplation of with, such acquisition, merger, consolidation or transaction); provided that for purposes of this clause (2), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, if a Person other than the PersonCompany is the Successor Company with respect thereto, any Subsidiary thereof or the property agreement or assets of the Person, so acquired, provided that the Consolidated Cash Flow instrument of such Person is not taken into account in determining whether or any such acquisition was permitted Subsidiary shall be deemed acquired or assumed, as the case may be, by the terms of this IndentureCompany or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(vi3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in the case clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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);
(4) pursuant to customary non-assignment provisions in leases, licenses or joint venture agreements and other similar contracts agreements entered into in the ordinary course of business and consistent business;
(5) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (B) by virtue of any transfer of, agreement to transfer, option or right with past practices respect to, or Lien on, any property or assets of the Company or any encumbrance or restriction Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, or (3I) above pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(6) with respect to any agreement for the direct or indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(7) 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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 property so acquired;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 or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Receivables Subsidiary.
Appears in 1 contract
Sources: Indenture (L Brands, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company (a) KP Parent will not, and will not permit any of its Restricted Subsidiaries 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 ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions to the Company in cash or any of its Restricted Subsidiaries (A) otherwise on its Capital Stock or (B) pay any Indebtedness or other obligations owed to KP Parent or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company KP Parent or any of its other Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason of
(i) Indebtedness as in effect on the date of this IndentureSubsidiary;
(ii) the Credit Facility as in effect as make any loans or advances to KP Parent or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of the date of this Indenture, and its property or assets to KP Parent or any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofRestricted Subsidiary, provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to KP Parent or any Restricted Subsidiary to other Indebtedness Incurred by KP Parent or any Restricted Subsidiary shall not be deemed to constitute such amendmentsan encumbrance or restriction.
(b) The provisions of Section 4.04(a) will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any Credit Facility (including the Senior Secured Credit Facilities Agreement), modificationsor the Intercreditor Agreement, restatementsany Additional Intercreditor Agreement or the Security Documents or (B) any other agreement or instrument, renewalsin each case described in (A) or (B), increasesin effect at or entered into on the Issue Date;
(ii) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, supplementsentered into on or before the date on which such Person was acquired by or merged, refundingsconsolidated or otherwise combined with or into KP Parent or any Restricted Subsidiary, replacements or refinancings are not materially more restrictiveon which such agreement or instrument is assumed by KP Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, taken or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by KP Parent or was merged, consolidated or otherwise combined with or into KP Parent or any Restricted Subsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this Section 4.04(b)(ii), if another Person is the successor Person (as a wholedescribed in Section 5.01), with respect to any Subsidiary thereof or agreement or instrument of such dividend and other payment restrictions than those contained Person or any such Subsidiary shall be deemed acquired or assumed by KP Parent or any Restricted Subsidiary when such Person becomes the such successor Person; provided further, that, in the Credit Facility as in effect on the date case of Indebtedness, such Indebtedness was permitted to be Incurred under this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clause (i) or (ii) of this Indenture Section 4.04(b) or this Section 4.04(a)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause (i) or (ii) of this Section 4.04(b) or this Section 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the SecuritiesHolders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Board of Directors or a member of Senior Management of KP Parent);
(iv) applicable lawany encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(vB) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
(vi) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, charges, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company KP Parent or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, charges, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of KP Parent or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired in the nature of those described in Section 4.04(a)(iii), or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(vi) 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 to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) purchase money obligations for property acquired customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business that impose business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising 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 4.01 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 nature described Notes than (1) the encumbrances and restrictions contained in clause (3) above the Senior Secured Credit Facilities Agreement, together with the Security Documents, and the Intercreditor Agreement, in each case, as in effect on the property so acquiredIssue Date or (2) as is customary in comparable financings (as determined in good faith by the Board of Directors or a member of Senior Management of KP Parent) or (B) constituting an Additional Intercreditor Agreement;
(xii) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors or a member of Senior Management of KP Parent, are necessary or advisable to effect such Qualified Receivables Financing; or
(xiii) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.03.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with or in contemplation of with, such acquisition, merger, consolidation or transaction); provided that for purposes of this clause (2), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, if a Person other than the PersonCompany is the Successor Company with respect thereto, any Subsidiary thereof or the property agreement or assets of the Person, so acquired, provided that the Consolidated Cash Flow instrument of such Person is not taken into account in determining whether or any such acquisition was permitted Subsidiary shall be deemed acquired or assumed, as the case may be, by the terms of this IndentureCompany or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(vi3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in the case clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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);
(4) pursuant to customary non-assignment provisions in leases, licenses or joint venture agreements and other similar contracts agreements entered into in the ordinary course of business and consistent business;
(5) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (B) by virtue of any transfer of, agreement to transfer, option or right with past practices respect to, or Lien on, any property or assets of the Company or any encumbrance or restriction Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, or (3I) above pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(6) with respect to any agreement for the direct or indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(7) 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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 property so acquired;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 or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Receivables Subsidiary.
Appears in 1 contract
Sources: Indenture (Victoria's Secret & Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (i) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary (other than a Guarantor) to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Guarantor) to:;
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness or other obligations owed to the Company Issuer or any of its Restricted SubsidiariesSubsidiary;
(2) make any loans or advances to the Company Issuer or any of its Restricted SubsidiariesSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries, except for such Subsidiary;
(ii) The preceding provisions will not prohibit encumbrances or restrictions existing under or by reason of:
(i1) Indebtedness as in effect on the date of this Indenture;
(ii) the Credit Facility as contractual encumbrances or restrictions pursuant to agreements or instruments in effect as of the date of Issue Date;
(2) this Indenture, and any amendmentsthe Notes, modifications, restatements, renewals, increases, supplements, refundings, replacements the Security Agreements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureNote Guarantees;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v3) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect existence at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or but not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property properties or assets of the PersonPerson and its Subsidiaries, so acquired, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indentureacquired (including after acquired property);
(vi4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2), or (3) of this Section 4.1(h)(ii) or this clause (4); provided that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive than the encumbrances and restrictions contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.1(h)(ii) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of clause (3Section 4.1(h)(i)(3), customary non-assignment Liens permitted to be Incurred under the provisions in leases, licenses or similar contracts entered into in of Section 4.1(g) that limit the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness right of the Company or a Restricted Subsidiary debtor to the extent such encumbrances or restrictions restrict the transfer dispose of the property subject to assets securing such mortgages, pledges or other security agreementsIndebtedness;
(vii6) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case that impose encumbrances or restrictions of the nature described in clause (3) above of Section 4.1(h)(i) on the property so acquired;
(7) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Issuer 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 Subsidiary;
(8) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business and with the approval of the Board of Directors;
(9) customary non-assignment provisions in leases, subleases or licenses and other similar agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; and
(11) contained in the terms governing any Indebtedness if (as determined in good faith by the Issuer) (i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Issuer or any Guarantor to make payments on the Notes or (y) in the case of any Refinancing Indebtedness, are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those contained in the agreements governing the Indebtedness being refinanced.
Appears in 1 contract
Sources: Indenture (Auna S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries;
(2ii) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries, except for such .
(b) The restrictions in Section 3.6(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this IndentureIssue Date;
(ii) the Credit Facility as in effect as of the date of this Indenture, the Notes, the Guarantees, the Security Documents and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureIntercreditor Agreement;
(iii) this Indenture and the Securitiesapplicable law, rule, regulation or order, including any requirement of any governmental healthcare programs;
(iv) applicable law;
(v) any instrument or agreement governing Indebtedness or Capital Stock of a Person Restricted Subsidiary acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson or any of its Subsidiaries, or the property or assets of the PersonPerson or any of its Subsidiaries, so acquired; provided that, provided that in the Consolidated Cash Flow case of Indebtedness, such Person is not taken into account in determining whether such acquisition Indebtedness was permitted by the terms of this IndentureIndenture to be incurred;
(viv) in the case of clause (3), customary non-assignment provisions in contracts, leases, subleases, licenses or similar contracts and sublicenses entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementsbusiness;
(viivi) customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property purchased or leased of the nature described in clause Section 3.6(a)(iii);
(3vii) above any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(viii) any instrument or agreement governing Permitted Refinancing Indebtedness; provided that the restrictions contained therein are not materially more restrictive (as determined in good faith by the Issuer), taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) Liens permitted to be incurred pursuant to Section 3.5 that limit the right of the debtor to dispose of the assets subject to such Liens;
(x) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xi) customary provisions imposed on the transfer of copyrighted or patented materials;
(xii) customary provisions restricting dispositions of real property so acquiredinterests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(xiii) contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary of the Issuer in any manner material to the Issuer or any Restricted Subsidiary of the Issuer;
(xiv) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary of the Issuer or any of their businesses;
(xv) any instrument or agreement governing Indebtedness or preferred stock of any Restricted Subsidiary that is incurred or issued subsequent to the Issue Date and not in violation of Section 3.4; provided that the Issuer’s Board of Directors determines in good faith that restrictions are not reasonably likely to have a materially adverse effect on the Issuer’s and/or Guarantors’ ability to make principal and interest payments on the Notes;
(xvi) customary provisions in joint venture and other similar agreements, including agreements related to the ownership and operation of dialysis clinics, relating solely to such joint venture or facilities or the Persons who own Equity Interests therein;
(xvii) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Indebtedness, preferred stock, Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations referred to in clauses (i), (ii), (iv) and (xv) of this Section 3.6(b); provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, (as determined by the Issuer in good faith) than those restrictions contained in the Indebtedness, preferred stock, Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations referred to in clauses (i), (ii), (iv) and (xv) of this Section 3.6(b), as applicable prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(xviii) customary provisions in connection with a Qualified Receivables Transaction; and
(xix) restrictions in Management Agreements that require the payment of management fees to the Issuer or one of its Restricted Subsidiaries prior to payment of dividends or distributions. For purposes of determining compliance with this Section 3.6, (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiary or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 obligation, shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, this Indenture or any of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason of
(i) Indebtedness as in effect on the date of this IndentureSubsidiary Guarantee;
(iib) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any of its Restricted Subsidiaries Subsidiary in connection with an acquisition from such Person (but not created in contemplation thereof), as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Section 4.05(b), if a Person other than the Company or a Restricted Subsidiary is the successor company with respect thereto, any Subsidiary thereof or in contemplation agreement or instrument of such acquisitionPerson 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;
(c) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, modifies or replaces, any agreement or instrument referred to in Section 4.05(a) or Section 4.05(b) or this Section 4.05(c) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (a “Refinancing Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Refinancing Amendment, taken as a whole, are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which encumbrance such Refinancing Agreement or restriction is not applicable Refinancing Amendment relates (as determined in good faith by the Company);
(d) (A) pursuant to any Personagreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the properties subletting, assignment or assets transfer of any Personproperty or asset subject thereto, other than the Person(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and licenses) in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly-owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary or (3I) above pursuant to Hedging Obligations or Bank Products Obligations;
(e) with respect to any agreement for the direct or indirect disposition of Capital Stock, property or assets of any Person, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(f) 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(g) pursuant to an agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.03 (A) if the encumbrances and restrictions contained in any such agreement or instrument, taken as a whole, are not materially less favorable to the Holders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company) or (B) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Company) and either (1) the Company determines in good faith that such encumbrance or restriction shall not materially affect the Company’s ability to make principal or interest payments on the property so acquired;Securities or (2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (iii) 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 (Greif Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) However, except for such Section 4.13(a) will not apply to encumbrances or restrictions existing under or by reason of:
(i1) Existing Indebtedness as in effect on the date of this Indenturehereof;
(ii2) this Indenture or the Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this IndentureNotes;
(iii3) this Indenture and the Securitiesapplicable law, rules or regulations;
(iv) applicable law;
(v4) any instrument governing Indebtedness (including Acquired Debt) or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that PROVIDED that, in the Consolidated Cash Flow case of Indebtedness, such Person is not taken into account in determining whether such acquisition Indebtedness was permitted by the terms of this IndentureIndenture to be incurred;
(vi5) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts agreements entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementspractices;
(vii6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause Section 4.13(a)(3);
(37) above any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(9) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) the Senior Credit Agreement as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; PROVIDED that the encumbrances or restrictions in such Credit Facilities are not materially more restrictive to the borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of this Indenture (other than encumbrances or restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or all of the purchase price of a Restricted Subsidiary and which only apply to the Restricted Subsidiary so acquired and such Restricted Subsidiary's assets);
(14) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; PROVIDED that such restrictions apply only to such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any other Persons or the property so acquired;or assets of any other Person; PROVIDED that such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividends or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, profits to the Company or (ii) a Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Company or any of its a Restricted Subsidiaries;
Subsidiary, (2ii) make any loans or advances to the Company or any of its other Restricted Subsidiaries; or
Subsidiary or (3iii) transfer any of its properties property or assets to the Company or any of its other Restricted SubsidiariesSubsidiary, except for such encumbrances or restrictions existing under or by reason of
of (i) Indebtedness as in effect on the date of this Indenture;
(iia) the Credit Facility as in effect as of the date of this Indentureon December 17, 2001, and any amendments, modificationsrestatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, 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 no more restrictive, taken as a whole, restrictive with respect to such dividend and other payment restrictions than those contained in the Credit Facility as (or, if more restrictive, than those contained in effect on the date of this Indenture;
) immediately prior to any such amendment, restatement, renewal, replacement or refinancing, (iii) this Indenture and the Securities;
(ivb) applicable law;
, (vc) any instrument governing Indebtedness or Capital Stock of a an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition); provided, which encumbrance or however, that (1) such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person, or and (2) the property or assets consolidated net income of the Person, so acquired, provided that the Consolidated Cash Flow of an Acquired Person for any period prior to such Person is acquisition shall not be taken into account in determining whether such acquisition was permitted by the terms of this Indenture;
, (vid) in the case by reason of clause (3), customary non-assignment provisions in leases, licenses leases or similar contracts other agreements entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgagespractices, pledges or other security agreements permitted under this Indenture securing (e) Purchase Money 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;
(vii) purchase money obligations for property acquired in the ordinary course of business that only impose restrictions of the nature described in clause (3) above 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 this 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 any lease entered into in the ordinary course of business, consistent with past practice, nor (b) Liens permitted under this Indenture, shall in and of themselves be considered a restriction on the ability of the applicable Restricted Subsidiary to transfer such agreements or assets, as the case may be.
Appears in 1 contract
Sources: Indenture (Terex Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) (i) pay dividends 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 of its other Restricted Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted SubsidiariesSubsidiary;
(2) make any loans or advances to the Company or any of its other Restricted SubsidiariesSubsidiary; or
(3) transfer any of its properties or assets Property to the Company or any other Restricted Subsidiary.
(b) The limitations set forth in subsection (a) of its this Section 1010 will not apply:
(1) with respect to clauses (1), (2) and (3) of subsection (a) of this Section 1010, to restrictions:
(A) in effect on the Issue Date (and restrictions pursuant to the Notes, this Indenture, the Notes Guarantees, the Security Documents and the New Credit Facility);
(B) imposed on a Restricted SubsidiariesSubsidiary and existing at the time it became a Restricted Subsidiary if such restrictions were 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;
(C) that result from the Refinancing or subsequent Refinancing of Debt Incurred pursuant to an agreement, except for such encumbrances instrument or contract referred to in subclause (A), (B), (E), (F), (H), (I), (J) or (K) of this clause (1) of subsection (b) of this Section 1010, provided that the restrictions existing under or by reason of
(i) Indebtedness as in effect on the date of this Indenture;
(ii) the Credit Facility as in effect as of the date of this Indentureany such agreement, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements instrument or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings contract are not materially more restrictiveless favorable, taken as a whole, with respect to such dividend and other payment restrictions the Holders than those contained under the agreement evidencing the Debt so Refinanced; Indenture
(D) existing by virtue of, or arising under, applicable law, regulation, order, approval, license, permit or similar restriction, in the Credit Facility as in effect on the date of this Indentureeach case issued or imposed by a governmental authority;
(iiiE) this Indenture and the Securities;
(iv) applicable law;
(v) under any agreement, instrument governing Indebtedness or Capital Stock of contract affecting Property or a Person at the time such Property or Person was acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition (except restriction relates solely to the extent such Indebtedness Property or Person so acquired and was incurred not created in connection with or in contemplation anticipation of such acquisition);
(F) under or in connection with any joint venture agreements, which encumbrance or restriction is not applicable to any Personpartnership agreements, or the properties or assets of any Personstock sale agreements, asset sale agreements and other than the Person, or the property or assets of the Person, so acquiredsimilar agreements, provided that any such agreements are entered into in the Consolidated Cash Flow ordinary course of business and in good faith and that such Person is not taken into account in determining whether restrictions are reasonably customary for such acquisition was permitted by the terms of this Indentureagreements;
(viG) in the case of clause (3)under any customary provisions imposed by customers with respect to cash or other deposit or net worth requirements under agreements, customary non-assignment provisions in leases, licenses instruments or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction 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 agreementspractices;
(viiH) purchase money obligations for property acquired under any agreement entered into in connection with the ordinary course Incurrence of business that impose restrictions Debt of the nature type described in clause (j) of the definition of Permitted Debt;
(I) under any customary provisions under any agreements, instruments or contracts relating to any Receivables Program;
(J) under any customary provisions under any agreements, instruments or contracts relating to any Synthetic Lease of the Office Campus;
(K) under any agreement, instrument or contract relating to Debt that is permitted under Section 1008 to be Incurred pursuant to clause (b) of the definition of Permitted Debt; and
(L) under any agreement, instrument or contract entered into in connection with any transactions relating to tax-planning strategies of the Company and its Restricted Subsidiaries; provided that all such transactions are between or among Restricted Subsidiaries, the Company and any trustee, transfer agent or escrow agent relating to such tax-planning strategies, or any combination of the foregoing parties; and
(2) only with respect to clause (3) above of subsection (a) of this Section 1010 to: Indenture
(A) customary provisions restricting subletting or assignment of leases or customary provisions in licenses or other agreements that restrict assignment of such agreements or rights thereunder;
(B) customary provisions restricting the sale or other disposition of Property contained in agreements limiting the transfer of Property pending the closing of such sale; and
(C) restrictions on the property so sale or other disposition of Property acquired;, constructed, improved or leased (and any additions, parts, attachments, fixtures, leasehold improvements, proceeds, improvements or accessions related thereto) in whole or in part under any agreement, instrument or contract relating to Debt permitted under Section 1008 to be Incurred under clause (c) of the definition of Permitted Debt.
Appears in 1 contract
Sources: Indenture (Sanmina-Sci Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with respect pay any Indebtedness or other obligations owed to any other interest or participation inthe Company, or measured by, its profits, or (ii) pay make any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3iii) transfer any of its properties 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 its Restricted Subsidiariesany remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except for such encumbrances any encumbrance or restrictions existing under or by reason ofrestriction:
(i1) Indebtedness as pursuant to an agreement or instrument in effect at or entered into on the date of Issue Date, any Credit Facility, this IndentureIndenture or the Notes;
(ii2) the Credit Facility as in effect as pursuant to any agreement or instrument of the date of this Indenturea Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect relating to such dividend and other payment restrictions than those contained in the Credit Facility as in effect on the date of this Indenture;
(iii) this Indenture and the Securities;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of its Restricted Subsidiaries assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); 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 in contemplation agreement or instrument of such acquisitionPerson 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 or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing 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 encumbrance such Refinancing Agreement or restriction is not applicable Amendment relates (as determined in good faith by the Company);
(4) (A) pursuant to any Personagreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the properties subletting, assignment or assets transfer of any Personproperty or asset subject thereto, other than the Person(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the Lien on, any property or assets of the Person, so acquired, provided that the Consolidated Cash Flow of such Person is Company or any Restricted Subsidiary not taken into account in determining whether such acquisition was permitted otherwise prohibited by the terms of this Indenture;
, (viC) in the case of clause (3), customary non-assignment provisions in leases, licenses or similar contracts entered into in the ordinary course of business and consistent with past practices or any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to such mortgagescustomary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, pledges (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other security agreements;
deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (viiG) purchase money obligations for property acquired pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that impose restrictions arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the nature described Company or any Restricted Subsidiary in clause any manner material to the Company or such Restricted Subsidiary, (3I) above pursuant to Hedging Obligations or Bank Products Obligations or (J) pursuant to Related Corporation Contracts,
(5) with respect to any agreement for the direct or indirect disposition of Capital Stock of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale 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, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to 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 property so acquired;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 or Indebtedness of 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 (Envision Healthcare Corp)