Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s Restricted Subsidiaries; (2) make loans or advances to the Company or any of the Company’s Restricted Subsidiaries; or (3) transfer any of its properties or assets to the Company or any of the Company’s Restricted Subsidiaries. (b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of: (1) agreements governing Existing Indebtedness and any other agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; 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 such agreements on the Issue Date; (2) this Indenture, the Notes and the related Subsidiary Guarantees; (3) applicable law, rule, regulation or administrative or court order; (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; (5) customary non-assignment provisions in leases, licenses, contracts and other agreements entered into in the ordinary course of business; (6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3); (7) any agreement for the sale or other disposition of all or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition; (8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; (9) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien; (10) 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 or with the approval of the Company’s Board of Directors; (11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction; (12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof; (14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business; (15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company; (16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness; (17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and (18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 9 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of the Company’s Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement (including the Credit Agreement) as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; 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 such agreements on the Issue Date;
(2) this Indenture, the Notes and the related Subsidiary Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired;
(5) customary non-assignment provisions in leases, licenses, contracts and other agreements entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 3 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement or instruments as in effect on the Issue Date and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements agreements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such agreements on the Issue Dateinstruments;
(2) this Indenture, the Notes Note Documents and the related Subsidiary Note Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any agreement or 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 agreement or instrument was incurred entered into or Capital Stock was issued created in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses, contracts licenses and other agreements contracts entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of Section 4.08(a)(3)4.08(a) hereof;
(7) any agreement for the sale or other disposition of all assets that contains customary restrictions pending its sale or substantially all the Capital Stock or assets of other disposition, including restrictions on distributions by a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such its sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting under this Indenture that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation is applicable only to the ordinary course assets that are the subject of business or with the approval of the Company’s Board of Directorssuch agreements;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(1312) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment any agreement or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any instrument governing Indebtedness, and that do not, individually Disqualified Stock or in the aggregate, detract from the value preferred stock of property or assets of the Company or any Restricted Subsidiary thereof in any manner material Foreign Subsidiaries permitted to be incurred subsequent to the Company or any Restricted Subsidiary thereofIssue Date pursuant to Section 4.09 hereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(1713) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that areamendment, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendmentrestatement, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.refinancing of an agreement or instrument referred to in clauses (1), (4), (6) or (12) of this Section 4.08(b) or this clause (13); provided, however, that the encumbrances and restrictions contained in any such agreement or instrument are not materially more restrictive, taken as a whole, than the encumbrances and restrictions contained in such agreements referred to in clauses (1), (4), (6) or (12) of this Section 4.08(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(14) any organizational document or any agreement or arrangement relating to any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary;
(15) Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Permitted Securitization Program; provided that such restrictions apply only to such Receivables Subsidiary;
Appears in 3 contracts
Samples: Indenture (Unisys Corp), Indenture (Unisys Corp), Indenture (Unisys Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit otherwise cause to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its Capital Stock to any Equity Interests of such Restricted Subsidiary owned by the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or ;
(2) pay any Indebtedness owed to the Company or any of the Company’s other Restricted SubsidiariesSubsidiary;
(23) make loans or advances to the Company or any of the Company’s other Restricted SubsidiariesSubsidiary; or
(34) transfer any of its properties property or assets to the Company or any of the Company’s other Restricted SubsidiariesSubsidiary.
(b) The restrictions in Section 4.08(a4.07(a) hereof will not apply to encumbrances or restrictions:
(1) in this Indenture, the Security Documents, the Notes, the Note Guarantees, and any other agreement, including the Park Loan Documents, as the same are in effect on the Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that in the case of any such extensions, refinancings, renewals or replacements of such agreements, the related encumbrances or restrictions either (i) do not materially impair the ability of the Issuers to satisfy their obligations to make payments on the Notes when due (as determined in good faith by the Company) or (ii) are substantially similar or less restrictive, in the aggregate, to the encumbrances and restrictions set forth in the Park Loan Documents;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such assets or direct or indirect ownership of Persons obligated thereunder);
(3) existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; 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 such agreements on the Issue Date;
(2) this Indenture, the Notes and the related Subsidiary Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any instrument governing on cash, Cash Equivalents or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(5) with respect to a Foreign Subsidiary, entered into in the ordinary course of business or pursuant to the terms of Indebtedness or Capital Stock of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(7) contained in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by the Company or any of its Restricted Subsidiaries or that otherwise becomes a Restricted Subsidiary, or with respect to any Person or the property or assets of any Person newly designated as in effect a Restricted Subsidiary of the Company, existing at the time of such acquisition (except to the extent such Indebtedness was or designation and not incurred or Capital Stock was issued in connection with or solely in contemplation of such acquisition)thereof, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, or the properties or assets of any Person, other than the Person, Person or the property or assets of the Person, so acquired;
(5) customary non-assignment provisions in leases, licenses, contracts and Person other agreements entered into in than the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on Person or the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale or other disposition of all or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale Person so acquired or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanceddesignated;
(9) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case of the provision described in clause (4) of Section 4.08(a)(3): 4.07(a):
(aA) that restrict in a customary manner the subletting, assignment assignment, license or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset asset;
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(bC) existing under or by reason of ground leases, Finance Leases or purchase money obligations for property acquired that impose restrictions on that property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company and its Restricted Subsidiaries taken as a whole;
(10) restrictions on transfer or assignment provisions in Management Agreements or Franchise Agreements;
(11) with respect to the Company or a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or Property and assets of, the Company or such Restricted Subsidiary (including any restrictions on distributions or on the making of loans or advances by the Company or that Restricted Subsidiary pending its sale or other disposition);
(12) contained in the terms of any Indebtedness permitted under Section 4.08 hereof or any Restricted Subsidiary thereofagreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction, taken as a whole, is no more onerous in any material respect than is customary in comparable financings (as determined in good faith by the Company), and
(B) the encumbrances or restrictions do not materially impair the ability of the Issuers to satisfy their obligations to make payments on the Notes (as determined in good faith by the Company);
(13) existing under or by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business or xxxx xxxxxxx money deposits in favor of sellers in connection with acquisitions not prohibited under this Indenture;
(14) existing under, (a) restrictions applicable to any Unrestricted Subsidiary or any non-Wholly Owned Restricted Subsidiary or Joint Venture (or the Equity Interests thereof) or which exist under or by reason of or with respect to customary provisions contained in the governing agreements for any non-Wholly Owned Restricted Subsidiary or Joint Venture or (b) customary provisions in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, which exist under or by reason of Permitted Liens that limit the right of the debtor to transfer or otherwise dispose of the assets subject to such Liens;
(16) which exist by reason of the Park Loan Documents, any Secured Hedge Agreement or any Cash Management Agreement as in effect on the Issue Date or any Refinancing thereof; provided that with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) any Refinancing, such encumbrances or restrictions are customary for do not materially impair the type of Indebtedness being incurred and the jurisdiction ability of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability Issuers to satisfy their obligations to make principal and interest payments on the Notes, Notes (as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) restricting in a customary manner the transfer, license or assignment of any licensing agreement or other agreement governing Indebtedness incurred after contract (or otherwise relating to the assets subject thereto) entered into by the Company or its Restricted Subsidiaries in the ordinary course of business;
(18) which exist under or by reason of Contractual Obligations which (i) exist on the Issue Date that contains encumbrances and (ii) to the extent Contractual Obligations permitted by clause (i) are set forth in an agreement evidencing Indebtedness, any agreement evidencing any permitted modification, replacement, renewal, extension or other restrictions that areRefinancing of such Indebtedness so long as such modification, in the good faith judgment of the senior management replacement, renewal, extension or the Board of Directors of the Company, no more restrictive in any material respect Refinancing does not (when taken as a whole than those whole) materially impair the ability of the Issuers to satisfy their obligations to make payments on the Notes (as determined in good faith by the Company);
(19) any other encumbrances or restrictions so long as such encumbrances or restrictions do not materially impair the ability of the Issuers to satisfy their obligations to make payments on the Notes (as determined in good faith by the Company);
(20) customary negative pledges and restrictions on Liens in favor of any holder of Indebtedness for borrowed money permitted under Section 4.08;
(21) restrictions contained in any agreements related to a Project Financing or Qualified Non-Recourse Debt;
(22) which exist by reason of the Spin-Off Documents and any amendments thereto; provided that any such amendment does not materially impair the ability of the Issuers to satisfy their obligations to make payments on the Notes (as determined in good faith by the Company);
(23) customary provisions in partnership agreements, limited liability company organizational governance documents, Joint Venture agreements, non-Wholly Owned Restricted Subsidiary agreements and other restrictions similar agreements that restrict the transfer of ownership interests in such partnership, limited liability company, Joint Venture, non-Wholly Owned Restricted Subsidiary or similar Person or provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata basis;
(24) in connection with any rights of first refusal and rights of first offer relating to Properties;
(25) in connection with any Permitted Sale Restrictions or Permitted Transfer Restrictions;
(26) contained in any trading, netting, operating, construction, service, supply, purchase, sale, or other agreement entered into in the ordinary course of business; provided such agreement restricts the encumbrance of solely the property or assets that are customary the subject of such agreement, the payment rights thereunder or the proceeds thereof;
(27) contained in comparable financingsany Acceptable Preferred Equity Interests;
(28) contained in any organizational documents of a REIT Subsidiary that are intended to ensure compliance with REIT requirements; and
(1829) any encumbrances in connection with and pursuant to permitted extensions, Refinancings, renewals or replacements of restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred pursuant to in clauses (1) through (1728) aboveof this Section 4.07(b); provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsRefinancings, restatementsrenewals or replacements, renewalstaken as a whole, increases, supplements, refundings, replacements or refinancings are, do not materially impair the ability of the Issuers to satisfy their obligations to make payments on the Notes (as determined in the good faith judgment by the Company); Nothing contained in this Section 4.07 will prevent the Company or any of its Restricted Subsidiaries from restricting the sale or other disposition of property or assets of the CompanyCompany or its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries. For purposes of determining compliance with this covenant, not materially more restrictive as a whole with respect to such encumbrances (1) the priority of any Preferred Stock in receiving dividends or restrictions than liquidating distributions prior to distributions being paid on common Equity Interests shall not be deemed a restriction on the ability to make distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness incurred by such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or refinancingadvances.
Appears in 3 contracts
Samples: Indenture (Park Hotels & Resorts Inc.), Indenture (Park Hotels & Resorts Inc.), Indenture (Park Hotels & Resorts Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of the Company’s Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; 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 such agreements on the Issue Date;
(2) this Indenture, the Notes and the related Subsidiary Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired;
(5) customary non-assignment provisions in leases, licenses, contracts and other agreements entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 3 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or otherwise transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The . However, the preceding restrictions in Section 4.08(a) will shall not apply to encumbrances or restrictions existing under or under, by reason ofof or with respect to:
(1) agreements governing the Credit Agreement, Existing Indebtedness and or any other agreement as agreements in effect on the Issue Date December 28, 2004 and any amendments, modifications, restatements, renewals, increasesextensions, supplements, refundings, replacements or refinancings of those agreements; thereof, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, increasesextensions, supplements, refundings, replacements or refinancings are not materially no more restrictive, taken as a whole, with respect to such dividend and or other payment restrictions than those contained in such agreements effect on the Issue DateDecember 28, 2004 ;
(2) the 7.5% Senior Notes Indenture, the 7.5% Senior Notes and the applicable 7.5% Senior Notes Subsidiary Guarantees;
(3) this Indenture, the Notes and the related Subsidiary Guarantees;
(34) applicable law, rule, regulation or administrative or court order;
(45) any instrument governing Indebtedness Person, or Capital Stock the property or assets of a Person such Person, acquired by the Company or any of its Restricted Subsidiaries as in effect Subsidiaries, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred or Capital Stock was issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, Person or the properties or assets of any Person, other than the Person, or the property or assets of the such Person, so acquired;
(5) customary non-assignment provisions in leasesacquired and any amendments, licensesmodifications, contracts and other agreements entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale restatements, renewals, extensions, supplements, refundings, replacements or other disposition of all or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; refinancings thereof, provided that the encumbrances and restrictions contained in the agreements governing any such Permitted Refinancing Indebtedness areamendments, in the good faith judgment of the senior management modifications, restatements, renewals, extensions, supplements, refundings, replacements or the Board of Directors of the Company, not materially refinancings are no more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in effect on the agreements governing date of the Indebtedness being refinancedacquisition;
(9) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(136) in the case of clause (3) of the provision described in first paragraph of this Section 4.08(a)(3): 4.13:
(a) that restrict restricting in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or asset,
(b) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(c) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereofSubsidiary;
(147) existing underany agreement for the sale or other disposition of all or substantially all of the Capital Stock of, by reason or property and assets of, a Restricted Subsidiary;
(8) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; or
(9) the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to customary provisions a financial covenant contained in leases such Indebtedness or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;agreement,
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company in good faith), and
(c) the Company determines that any such encumbrances encumbrance or restrictions restriction will not materially affect in any material respect the Company’s or any Guarantor’s ability to make principal and or interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Samples: Indenture (Landrys Restaurants Inc), Indenture (Landrys Restaurants Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness Debt owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in foregoing Section 4.08(a4.12(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) the Facility, the Corporate Revolver and the GoM Term Loan and other agreements governing Existing Indebtedness existing Debt and any other agreement Credit Facilities, in each case as in effect on the Issue Date and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that such the amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of existing Debt are not not, in the good faith judgment of the Company, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such those agreements on the Issue Date;
(2) this Indenture, the Notes Notes, the Note Guarantees and the related Subsidiary GuaranteesSecurity Documents;
(3) agreements governing Debt permitted to be Incurred pursuant to Section 4.09 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided (A) that the encumbrances and restrictions are not materially more disadvantageous to the holders of the Notes than is customary in comparable financings (as determined in the good faith judgment of the Company) and (B) either (x) the Company determines that such encumbrance or restriction will not adversely affect the Company’s ability to make principal and interest payments on the notes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Debt;
(4) applicable law, rule, regulation or administrative or court order;
(45) any instrument or agreement governing Indebtedness 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 Debt or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that in the case of Debt, such Debt was permitted by the terms of this Indenture to be Incurred;
(56) customary non-assignment provisions in leases, licenses, contracts and other agreements licenses entered into in the ordinary course of business;
(67) purchase money obligations in the case of Section 4.12(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under an indenture securing Debt of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(8) 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, which provisions apply only to the assets that are the subject of such agreements;
(9) Purchase Money Obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described in Section 4.08(a)(3Section 4.12(a)(3);
(710) any agreement for the sale or other disposition of all or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such that Restricted Subsidiary pending the closing of such its sale or other disposition;
(8) agreements governing 11) Permitted Refinancing IndebtednessDebt; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, Debt are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness Debt being refinanced;
(912) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of businessSection 4.10;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;Project Finance Debt; and
(14) existing under, by reason of any agreement or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or instrument governing a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingPermitted Investment.
Appears in 2 contracts
Samples: Senior Notes Indenture (Kosmos Energy Ltd.), Senior Notes Indenture (Kosmos Energy Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that such the 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 such those agreements on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) applicable law, rule, regulation or administrative order (or court orderother governmental approval, license or permit);
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions or subletting restrictions in leases, licenses, contracts and other agreements licenses entered into in the ordinary course of business;
(6) purchase money obligations and Indebtedness incurred to pay Open Account Obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on restrict the transfer of the property so acquired of the nature described in Section 4.08(a)(3)purchased or leased;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary (including, without limitation, the Capital Stock or all or substantially all of the Capital Stock or assets of a that Restricted Subsidiary Subsidiary) that restricts distributions by such that Restricted Subsidiary pending the closing of such sale or other dispositiondisposition (which limitation, in the case of a sale or disposition of all or substantially all assets, is applicable only to the property or assets that are the subject of such agreement);
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to under the provisions of Section 4.12, to the extent limiting 4.12 hereof that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, limited liability company organizational documents and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s Board of Directors, which limitation is applicable only to the property or assets that are the subject of such agreements;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection contracts with a Qualified Receivables Transaction;
(12) restrictions on cash customers or other deposits or net worth imposed by customers under contracts leases with lessors entered into in the ordinary course of businessbusiness that impose restrictions on cash, Cash Equivalents, marketable securities, or other deposits or net worth;
(12) agreements governing Indebtedness of Foreign Subsidiaries incurred pursuant to clause (14) of Section 4.09(b) hereof; provided that the Company determines in good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the notes and (y) are not materially more restrictive, taken as a whole, than is customary in comparable financings;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to agreements governing Hedging Obligations incurred in the ordinary course of businessbusiness and permitted to be incurred under the provisions of the covenant described in Section 4.09 hereof; provided that the Company determines in good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the notes and (y) such restrictions are not materially more restrictive, not relating taken as a whole, with respect to any Indebtedness, such dividend and that do not, individually or other payment restrictions applicable to such Restricted Subsidiary than those contained in the aggregate, detract from the value agreements covered by clauses (1) or (2) of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereofthis paragraph;
(14) existing underany instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the date, by reason if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction is not applicable to any Person, or to the property or assets of or with respect any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries (immediately prior to customary provisions contained in leases or licenses of intellectual property such redesignation) and other agreements, in each case, entered into in the ordinary course of business;their respective properties and assets; and
(15) existing under, by reason of or with respect to agreements governing other Indebtedness of the Company or a Restricted Subsidiary not prohibited permitted to be incurred under this IndentureSection 4.09 hereof; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined Company determines in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the notes and (y) such restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that areare not materially more restrictive, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole whole, with respect to such dividend and other payment restrictions applicable to such Restricted Subsidiary than those encumbrances and other restrictions that are customary contained in comparable financings; and
(18) any encumbrances or restrictions imposed the agreements covered by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through or (172) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingthis paragraph.
Appears in 2 contracts
Samples: Indenture (H&E Equipment Services, Inc.), Indenture (H&E Equipment Services, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s Restricted Subsidiaries, (or with respect to any other interest or participation in, or measured by, its profits, ) to the Company or any of its Restricted Subsidiaries or pay any Indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances immediately after giving effect to the Company or any such transaction no Event of the Company’s Restricted Subsidiaries; orDefault exists;
(3) transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a6.4(a) hereof will not apply to encumbrances or restrictions existing under or by reason ofrestrictions:
(1) agreements governing Existing existing under, by reason of or with respect to the ABL Documents, Indebtedness and existing on the Closing Date, or any other agreement as agreements in effect on the Issue Closing Date and any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, 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 such agreements effect on the Issue Closing Date;
(2) existing under, by reason of or with respect to any other Credit Facility of the Company permitted under this IndentureAgreement; provided that the applicable encumbrances and restrictions contained in the agreement or agreements governing the other Credit Facility are not materially more restrictive, taken as a whole, than those contained in the Notes and ABL Credit Facility and/or this Agreement, in each case as in effect on the related Subsidiary GuaranteesClosing Date;
(3) existing under, by reason of or with respect to applicable law, rule, regulation or administrative or court order;
(4) with respect to any instrument governing Indebtedness Person or Capital Stock the property or assets of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred or Capital Stock was issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, Person or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired;
(5) customary non-assignment provisions acquired and any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in leasesany such amendments, licensesmodifications, contracts and other agreements restatements, renewals, extensions, increases, supplements, refundings, replacement or refinancings are entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale or other disposition of all or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the ABL Credit Facility, this Agreement, Indebtedness existing on the Closing Date or such other agreements governing as in effect on the Indebtedness being refinanceddate of the acquisition;
(9) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(135) in the case of the provision described in clause (3) of Section 4.08(a)(3): 6.4(a) hereof:
(a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset asset,
(b) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary thereof not otherwise prohibited by the indenture,
(c) existing under, by reason of or with respect to (i) purchase money obligations for property acquired in the ordinary course of business or (bii) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(d) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(146) existing under, by reason of or with respect to customary provisions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions;
(7) existing under, by reason of or with respect to any agreement for the sale or other disposition of some or all of the Capital Stock of, or any property and assets of, a Restricted Subsidiary that restricted distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(8) existing under, by reason of or with respect to Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the agreements governing that Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) restricting cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(1511) existing under, by reason of or with respect to (a) the Notes Indenture, the Notes (and any additional notes), the Note Guarantees and the security documents (including any exchange notes or exchange guarantees issued in respect thereof), (b) the Loans and the documents related thereto, (c) the intercreditor agreements with respect to the Consolidated Secured Indebtedness or (d) any amendments, supplements, modifications, restatements, replacements, renewals, refundings, restructurings, increases or refinancing of any of the foregoing;
(12) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenturethe indenture; provided that (a) such encumbrances or restrictions are ordinary and customary for in light of the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the NotesLoans, as determined in good faith by the Company;
(1613) agreements governing Indebtedness incurred in consisting of customary restrictions pursuant to any Permitted Receivables Financing; or
(14) existing under, by reason of or with respect to, any Consolidated Secured Indebtedness. For purposes of determining compliance with this Section 4.09(b)(4)6.4, provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (172) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements the subordination of loans or refinancings are, in advances made to the good faith judgment Company or a Restricted Subsidiary of the Company, Company to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not materially more restrictive as be deemed a whole with respect restriction on the ability to such encumbrances make loans or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingadvances.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Euramax International, Inc.), Credit and Guaranty Agreement (Euramax International, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that such the 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 such those agreements on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) applicable law, rule, regulation or administrative order (or court orderother governmental approval, license or permit);
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions or subletting restrictions in leases, licenses, contracts and other agreements licenses entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on restrict the transfer of the property so acquired of the nature described in Section 4.08(a)(3)purchased or leased;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary (including, without limitation, the Capital Stock or all or substantially all of the Capital Stock or assets of a that Restricted Subsidiary Subsidiary) that restricts distributions by such that Restricted Subsidiary pending the closing of such sale or other dispositiondisposition (which limitation, in the case of a sale or disposition of all or substantially all assets, is applicable only to the property or assets that are the subject of such agreement);
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to under the provisions of Section 4.12, to the extent limiting 4.12 that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, limited liability company organizational documents and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s Board of Directors, which limitation is applicable only to the property or assets that are the subject of such agreements;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection contracts with a Qualified Receivables Transaction;
(12) restrictions on cash customers or other deposits or net worth imposed by customers under contracts leases with lessors entered into in the ordinary course of businessbusiness that impose customary restrictions on cash, Cash Equivalents, marketable securities, or other deposits or net worth or transfers of property;
(12) agreements governing Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries incurred pursuant to clause (13) of Section 4.09(b) hereof; provided that the Company determines in good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the Notes and (y) are not materially more restrictive, taken as a whole, than is customary in comparable financings;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to agreements governing Hedging Obligations incurred in the ordinary course of businessbusiness and permitted to be incurred under the provisions of Section 4.09 hereof; provided that the Company determines in good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the Notes and (y) such restrictions are not materially more restrictive, not relating taken as a whole, with respect to any Indebtedness, such dividend and that do not, individually or other payment restrictions applicable to such Restricted Subsidiary than those contained in the aggregate, detract from the value agreements covered by clauses (1) or (2) of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereofthis paragraph;
(14) existing underany instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the date, by reason if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction is not applicable to any Person, or to the property or assets of or with respect any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries (immediately prior to customary provisions contained in leases or licenses of intellectual property such redesignation) and other agreements, in each case, entered into in the ordinary course of businesstheir respective properties and assets;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments effect on the Notes, as determined Issue Date that are contained in good faith by the Company;charter documents or shareholder agreements relating to any Restricted Subsidiary; and
(16) agreements governing other Indebtedness permitted to be incurred under Section 4.09 hereof; provided that the Company determines in compliance with Section 4.09(b)(4), provided good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the notes and (y) such restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that areare not materially more restrictive, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole whole, with respect to such dividend and other payment restrictions applicable to such Restricted Subsidiary than those encumbrances and other restrictions that are customary contained in comparable financings; and
(18) any encumbrances or restrictions imposed the agreements covered by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through or (172) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingthis paragraph.
Appears in 1 contract
Samples: Indenture (MTS Systems Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, modifications, restatements, renewals, increases, extensions, supplements, refundings, replacements or refinancings of those agreements; any of the foregoing, provided that such the amendments, modifications, restatements, renewals, increases, extensions, supplements, refundings, replacements replacement or refinancings of such instrument are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such agreements agreement on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) applicable law, rule, regulation law or administrative any applicable rule or court orderregulation;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses, licenses or similar contracts and other agreements entered into in the ordinary course of businessbusiness or that restrict the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on restrict the property so acquired transfer of such property; provided that any such encumbrance or restriction is released to the nature described in Section 4.08(a)(3)extent the underlying Lien is released or the related Indebtedness is repaid;
(7) any agreement for the sale or other disposition of all a Restricted Subsidiary or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other dispositiondisposition of such assets or Restricted Subsidiary;
(8) agreements governing Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien Liens securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of under Section 4.12, to the extent limiting 4.12 and Section 4.09 hereof that limit the right of the debtor to dispose of or transfer the assets subject to such Liens;
(10) any transfer of, agreement to transfer, or option or right with respect to, any property or assets of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such LienSubsidiary not otherwise prohibited by this Indenture;
(1011) provisions with respect to the disposition or distribution of assets or property and other customary provisions in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transactionbusiness;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case Indebtedness permitted to be incurred pursuant to clause (4) of the provision described in Section 4.08(a)(3): (a4.09(b) that restrict in a customary manner the subletting, assignment or transfer of any hereof for property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to acquired in the ordinary course of business, not relating to any Indebtedness, business that only imposes encumbrances or restrictions on the property so acquired;
(14) net worth provisions in leases and that do not, individually or in the aggregate, detract from the value of property or assets of other agreements entered into by the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing underIndebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) apply only to such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;Receivables Subsidiary; and
(16) agreements governing Indebtedness permitted to be incurred in compliance with pursuant to Section 4.09(b)(4)4.09 hereof, provided that the provisions relating to such encumbrances encumbrance or restrictions apply only to assets financed with the proceeds of restriction contained in such Indebtedness;
(17) any other agreement governing Indebtedness incurred after , taken as a whole, are not materially more restrictive to the Issue Date that contains encumbrances or other restrictions that areCompany, in the good faith judgment of the senior management or as determined by the Board of Directors of the CompanyCompany in their reasonable and good faith judgment, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, provisions contained in the good faith judgment Credit Agreement or this Indenture as in effect on the date of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingthis Indenture.
Appears in 1 contract
Samples: Indenture (National Waterworks Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness Indebtedness, the Senior Subordinated Notes and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings 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 such those agreements on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) any applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses, contracts and other agreements entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale evidencing Indebtedness incurred without violation of this Indenture, or other disposition any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of all any agreement referred to in clauses (1) or substantially all the Capital Stock (4) or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition;
this clause (8) agreements governing Permitted Refinancing Indebtedness5); provided that the encumbrances or restrictions contained in the agreements governing any such Permitted Refinancing Indebtedness areagreement, in the good faith judgment of the senior management amendment, restatement, modification, renewal, supplement, refunding, replacement or the Board of Directors of the Company, not materially more restrictiverefinancing, taken as a whole, are either (in each case, as determined in good faith by the senior management of the Company) (i) not materially less favorable to the Holders of the Notes than those encumbrances and restrictions contained in agreements in effect at, or entered into on, the agreements governing date of this Indenture or (ii) (x) customary for instruments of such type and (y) will not materially adversely impact the Indebtedness being refinancedability of the Company to make required principal and interest payments on the Notes;
(96) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case of the provision described in Section 4.08(a)(3): that (a) that restrict restricts in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or asset, (b) creates an encumbrance or restriction by virtue of any transfer of, agreement to transfer, option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (c) is a licensing agreement to the extent such agreement limits the transfer of the property subject to such licensing agreement or (d) creates an encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, business and that do does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary thereofas determined in good faith by senior management of the Company;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, as determined in good faith by the senior management of the Company, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Foreign Subsidiary Debt;
(11) Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(12) Liens permitted to be incurred under Section 4.12 of this Indenture;
(13) Priority Lien Debt that limits the right of the debtor to dispose of the assets securing such Indebtedness that is otherwise permitted to be incurred pursuant Sections 4.09 and 4.12 of this Indenture;
(14) existing underprovisions limiting the disposition or distribution of assets or property in joint venture agreements, by reason asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets or with respect to entities that are the subject of such agreements;
(15) customary provisions contained in leases or licenses of intellectual property joint venture agreements and other similar agreements relating solely to such joint venture and its Subsidiaries or such similar agreements, in each case, ; and
(16) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Viasystems Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The preceding restrictions in Section 4.08(a) will shall not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings 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 such those agreements on the Issue Date;
(2) this Indenture, the Notes and the related Subsidiary Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person Restricted Subsidiary of the Company acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued 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, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses, contracts and other agreements licenses entered into in the ordinary course of business;
(6) 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 and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of Section 4.08(a)(34.08(a);
(7) 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 such that Restricted Subsidiary pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to the provisions under Section 4.12 of Section 4.12, to the extent limiting this Indenture that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation is applicable only to the ordinary course assets that are the subject of business or with the approval of the Company’s Board of Directorssuch agreements;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(12) customary provisions imposed on the transfer of copyrighted or patented materials;
(13) customary provisions restricting dispositions of real property interests set forth in the case any reciprocal easement agreements of the provision described Company or any Restricted Subsidiary of the Company;
(14) Indebtedness or other contractual requirements of a Receivables Subsidiary in Section 4.08(a)(3): connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary;
(a15) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to 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 Company or any Restricted Subsidiary thereof of the Company in any manner material to the Company or any Restricted Subsidiary thereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances restrictions on the transfer of property or restrictions apply only to assets financed with required by any regulatory authority having jurisdiction over the proceeds Company or any Restricted Subsidiary of such Indebtednessthe Company or any of their businesses;
(17) any other agreement governing restrictions arising in connection with Indebtedness incurred after the Issue Date permitted under this Indenture of a Restricted Subsidiary that contains encumbrances or other is not a Guarantor;
(18) restrictions that are, arising in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financingsconnection with Permitted Liens; and
(1819) in the event of a Specified Change of Control Parent Assumption, any encumbrances instrument governing Indebtedness or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings Capital Stock of the contracts, instruments Specified Change of Control Parent or obligations referred any of its Restricted Subsidiaries (as in effect at the time of such Specified Change of Control transaction) except to the extent such Indebtedness or Capital Stock was incurred in clauses (1) through (17) above; provided that connection with or in contemplation of such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment Specified Change of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingControl transaction.
Appears in 1 contract
Samples: Indenture (IASIS Healthcare LLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness Indebtedness, the Existing Notes and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings 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 such those agreements on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) any applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses, contracts and other agreements entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.08(a)(3);
(7) any agreement for the sale evidencing Indebtedness incurred without violation of this Indenture, or other disposition any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of all any agreement referred to in clauses (1) or substantially all the Capital Stock (4) or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending the closing of such sale or other disposition;
this clause (8) agreements governing Permitted Refinancing Indebtedness5); provided that the encumbrances or restrictions contained in the agreements governing any such Permitted Refinancing Indebtedness areagreement, in the good faith judgment of the senior management amendment, restatement, modification, renewal, supplement, refunding, replacement or the Board of Directors of the Company, not materially more restrictiverefinancing, taken as a whole, are either (in each case, as determined in good faith by the senior management of the Company) (i) not materially less favorable to the Holders of the Notes than those encumbrances and restrictions contained in agreements in effect at, or entered into on, the agreements governing date of this Indenture or (ii) (x) customary for instruments of such type and (y) will not materially adversely impact the Indebtedness being refinancedability of the Company to make required principal and interest payments on the Notes;
(96) any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 4.12, to the extent limiting the right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(10) 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 or with the approval of the Company’s Board of Directors;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case of the provision described in Section 4.08(a)(3): that (a) that restrict restricts in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or asset, (b) creates an encumbrance or restriction by virtue of any transfer of, agreement to transfer, option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (c) is a licensing agreement to the extent such agreement limits the transfer of the property subject to such licensing agreement or (d) creates an encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, business and that do does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary thereofas determined in good faith by senior management of the Company;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, as determined in good faith by the senior management of the Company, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Foreign Subsidiary Debt;
(11) Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(12) Liens permitted to be incurred under Section 4.12 of this Indenture;
(13) Priority Lien Debt that limits the right of the debtor to dispose of the assets securing such Indebtedness that is otherwise permitted to be incurred pursuant Sections 4.09 and 4.12 of this Indenture;
(14) existing underprovisions limiting the disposition or distribution of assets or property in joint venture agreements, by reason asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets or with respect to entities that are the subject of such agreements;
(15) customary provisions contained in leases or licenses of intellectual property joint venture agreements and other similar agreements relating solely to such joint venture and its Subsidiaries or such similar agreements, in each case, ; and
(16) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Viasystems Group Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will hereof shall not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings 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 such those agreements on the Issue Date, as determined in good faith by the Board of Directors of the Company;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued 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;
(5) customary non-assignment or change in control provisions in leases, licenses, contracts and other agreements licenses entered into in the ordinary normal course of business;
(6) purchase money obligations for property acquired in the ordinary normal course of business and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of Section 4.08(a)(3)4.08(a) hereof;
(7) any restriction imposed under an agreement for the sale or other disposition of all assets or substantially all the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary Equity Interests pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Board of Directors of the Company;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to under the provisions of Section 4.12, to the extent limiting 4.12 hereof that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary normal course of business or 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) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected the license of any intellectual property of the Company or any of its Restricted Subsidiaries entered into in connection with a Qualified Receivables Transactionthe normal course of business;
(12) the release, waiver or novation of contractual, indemnification, or any other legal rights entered into in the normal course of business; and
(13) restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary normal course of business;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Titan International Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will shall not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings 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 such those agreements on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Guarantees;
(3) applicable law, rule, regulation or administrative or court order;
(4) any instrument governing Indebtedness or Capital Stock of a Person Restricted Subsidiary acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses, contracts and other agreements licenses entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of Section 4.08(a)(34.08(a);
(7) 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 such that Restricted Subsidiary pending the closing of such sale or other disposition;
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to the provisions under Section 4.12 of Section 4.12, to the extent limiting this Indenture that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation is applicable only to the ordinary course assets that are the subject of business or with the approval of the Company’s Board of Directorssuch agreements;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with a Qualified Receivables Transaction;
(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) in the case of the provision described in Section 4.08(a)(3): (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset or (b) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(14) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Company’s or any Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(1812) any encumbrances customary provisions imposed on the transfer of copyrighted 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 (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancingpatented materials.
Appears in 1 contract
Samples: Indenture (Kraton Polymers LLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of the Company’s its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of the Company’s its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company’s its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of the Company’s its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement Credit Facilities as in effect on the Issue Date date of this Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that such the 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 such those agreements on the Issue Datedate of this Indenture;
(2) this Indenture, the Notes and the related Subsidiary Note Guarantees;
(3) applicable law, rule, regulation or administrative order (or court orderother governmental approval, license or permit);
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was issued incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions or subletting restrictions in leases, licenses, contracts and other agreements licenses entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on restrict the transfer of the property so acquired of the nature described in Section 4.08(a)(3)purchased or leased;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary (including, without limitation, the Capital Stock or all or substantially all of the Capital Stock or assets of a that Restricted Subsidiary Subsidiary) that restricts distributions by such that Restricted Subsidiary pending the closing of such sale or other dispositiondisposition (which limitation, in the case of a sale or disposition of all or substantially all assets, is applicable only to the property or assets that are the subject of such agreement);
(8) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or the Board of Directors of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any agreement creating a Lien securing Indebtedness otherwise Liens permitted to be incurred pursuant to under the provisions of Section 4.12, to the extent limiting 4.12 that limit the right of the Company or any of its Restricted Subsidiaries debtor to dispose of the assets subject to such LienLiens;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, limited liability company organizational documents and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s Board of Directors, which limitation is applicable only to the property or assets that are the subject of such agreements;
(11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection contracts with a Qualified Receivables Transaction;
(12) restrictions on cash customers or other deposits or net worth imposed by customers under contracts leases with lessors entered into in the ordinary course of businessbusiness that impose customary restrictions on cash, Cash Equivalents, marketable securities, or other deposits or net worth or transfers of property;
(12) agreements governing Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries incurred pursuant to clause (13) of Section 4.09(b) hereof; provided that the Company determines in good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the Notes and (y) are not materially more restrictive, taken as a whole, than is customary in comparable financings;
(13) agreements governing Hedging Obligations incurred in the case ordinary course of business and permitted to be incurred under the provision described provisions of Section 4.09 hereof; provided that the Company determines in good faith that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the Notes and (y) such restrictions are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions applicable to such Restricted Subsidiary than those contained in the agreements covered by clause (1) or (2) of this Section 4.08(a)(3): 4.08(b);
(a14) that restrict in a customary manner the subletting, assignment any instrument governing any Indebtedness or transfer Capital Stock of any Unrestricted Subsidiary as in effect on the date, if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction is not applicable to any Person, or to the property or asset assets of any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries (immediately prior to such redesignation) and their respective properties and assets;
(15) restrictions in effect on the Issue Date that is are contained in charter documents or shareholder agreements relating to any Restricted Subsidiary;
(16) customary provisions which prohibit the payment or making of dividends or other distributions other than on a lease, license, conveyance or contract or similar property or asset or pro rata basis;
(b17) restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
or (14y) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(15) existing under, by reason of or with respect to Indebtedness of the Company or a Restricted Subsidiary not prohibited to be incurred under this Indenture; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not materially affect in any material respect the Company’s or any Guarantor’s ability to make future principal and or interest payments on the Notes, in each case, as determined in good faith by the Company;
(16) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(17) any other agreement governing Indebtedness incurred after the Issue Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(18) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred agreements governing other Indebtedness permitted to in clauses (1) through (17) abovebe incurred under Section 4.09 hereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, the Company determines in the good faith judgment that such encumbrances and restrictions (x) will not cause the Company to not have the funds necessary to pay the principal of or interest on the Company, Notes and (y) such restrictions are not materially more restrictive restrictive, taken as a whole whole, with respect to such encumbrances or dividend and other payment restrictions than prior applicable to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement Restricted Subsidiary than those contained in the agreements covered by clause (1) or refinancing(2) of this Section 4.08(b).
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