Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to: (i) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary; (ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary; (iii) make loans or advances to the Company or any other Restricted Subsidiary; or (iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis. (b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions: (i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (ii) existing under or by reason of applicable law, rule, regulation or order; (iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13; (vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors) (i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or (viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.
Appears in 6 contracts
Samples: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided belowin Section 4.10(b), the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.08(a4.10(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Exchange Date, or in the New HY Notes, the Mandatorily Exchangeable Bonds, the Exchange Convertible Bonds, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the indentures governing the other series of New HY Notes, the Mandatorily Exchangeable Bonds, the Exchange Convertible Bonds or the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor Guarantee, or any JV Subsidiary Guarantor, and in any extensions, refinancings, renewals or replacements of any of the foregoing agreements; , provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and or in any extensions, refinancings, renewals or replacements thereof; , provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a4.10(a) if they arise, or are agreed to, to in the ordinary course of business and, that (iA) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (iiB) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iiiC) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.054.06, Section 4.09 4.11 and Section 4.134.14;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness or issuance of Preferred Stock of the type described permitted described under clause clauses (viiivii), (xiv), (xvi), (xviixix), (xviiixx), (xixxxi) or and (xxxxii) of Section 4.05(b4.06(b) if, as determined by the Board of Directors, the such encumbrances or restrictions (A) are (i) customary for such types of agreements and (iiB) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make any required payment on the Notes andNotes, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), or in any extensions, refinancings, renewals or replacements of any of the foregoing agreements; , provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreementsagreements permitted under this Indenture, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(iA) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (iiB) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, Notes or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and or any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.
Appears in 5 contracts
Samples: Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company The Issuers shall not, and shall not permit any Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Restricted Subsidiary to:
(i1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company an Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii3) make loans or advances to the Company an Issuer or any other Restricted Subsidiary; or
(iv4) sell, lease or transfer any of its property or assets to the Company an Issuer or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a5.13(a) do shall not apply to restrict any encumbrances or restrictions:
(i1) existing under, by reason of or with respect to this Indenture, the U.S. Credit Agreement, the Australian Credit Agreement, the U.K. Credit Agreement and any other agreement in agreements effect on the Issue Date as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements of any of the foregoing such agreements; provided provided, however, that the encumbrances and restrictions in any such extensionamendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewal renewals or replacementreplacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in the agreement or agreements governing the other Indebtedness are no not materially more restrictive restrictive, taken as a whole, than those contained in customary comparable financings and will not impair in any material respect the Issuers’ and the Guarantors’ ability to make payments on the Holders than those encumbrances or restrictions that are then in effect Notes and that are being extended, refinanced, renewed or replacedGuarantees thereof when due;
(ii3) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company an Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not incurred Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, acquired and any amendments, modifications, restatements, extensions, refinancingsincreases, supplements, refundings, refinancing, renewals or replacements thereof; provided provided, however, that the encumbrances and restrictions in any such extensionamendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewal renewals or replacementreplacements are entered into in the ordinary course of business or are not materially more restrictive, taken as a whole, are no more restrictive than those contained in any material the instruments or agreements with respect to the Holders than those encumbrances such Person or restrictions that are then its property or assets as in effect and that are being extended, refinanced, renewed or replacedon the date of such acquisition;
(iv4) that otherwise would be prohibited existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the provision described in clause (iv) case of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that 5.13(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or lease, license, conveyance or contract or similar property or asset,
(ii) exist existing by virtue of any Lien ontransfer of, or agreement to transfer, option or similar right with respect to to, or Lien on, any property or assets of the Company an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture or Indenture,
(iii) do existing under, by reason of or with respect to (1) purchase money obligations for property acquired in the ordinary course of business or (2) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(iv) arising or agreed to in the ordinary course of business, not relate relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company an Issuer or any Restricted Subsidiary in any manner material to an Issuer and its Restricted Subsidiaries taken as a whole;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Guarantor which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the Company date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(v7) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted restricts distributions by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any that Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for pending the Incurrence closing of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) such sale or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guaranteedisposition; or
(viii) 8) encumbrances or restrictions existing under or by reason of applicable law, regulation, order, approval, license, permit or similar restriction or agreement with governmental authorities with respect to assets located in their jurisdiction.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Unrestricted Restricted Subsidiary from restricting the sale or the other disposition of property or assets of such Unrestricted Subsidiary an Issuer or any of its Restricted Subsidiaries that is designated as secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to a Restricted Subsidiary in accordance with to other Indebtedness incurred by such Restricted Subsidiary shall not be deemed a restriction on the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances ability to make loans or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedadvances.
Appears in 4 contracts
Samples: Nineteenth Supplemental Indenture (MPT Operating Partnership, L.P.), Seventeenth Supplemental Indenture (MPT Operating Partnership, L.P.), Eighteenth Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 3.11(b) below, the Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company or any other Restricted Subsidiary;
(ii) Subsidiary of which it is a Subsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of which it is a Subsidiary;
(iii2) make loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
Subsidiary of which it is a Subsidiary (iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted SubsidiarySubsidiary shall not be deemed to be a restriction on the ability to make loans or advances); and or
(iii3) the provisions contained in documentation governing Indebtedness requiring transactions between transfer any of its property or among assets to the Company and or any other Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basisof which it is a Subsidiary.
(b) The provisions of Section 4.08(a3.11(a) do above will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i1) existing in agreements applicable law, rule, regulation, order or governmental license, permit or concession;
(2) this Indenture;
(3) any agreement as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect including pursuant to the Holders than those encumbrances or restrictions that are then in effect Bank Credit Facility and that are being extended, refinanced, renewed or replacedthe related documentation and Hedging Obligations;
(ii4) existing customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under or by reason of applicable law, rule, regulation or orderthis Indenture;
(iii5) with in respect to any Person or the property or assets of such Person a Restricted Subsidiary acquired by the Company or any Restricted SubsidiarySubsidiary after the Issue Date (other than an encumbrance related to Indebtedness Incurred in connection with, existing at or in anticipation or contemplation of, such acquisition), which encumbrance or restriction is outstanding on the time date of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property properties or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted SubsidiaryPerson so acquired;
(v6) restrictions with respect to a Restricted Subsidiary and of the Company imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided that such restrictions apply solely to the Capital Stock of, or property and assets of, of such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13being sold;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i7) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment restrictions imposed on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) transfer of Section 4.05(b), any extensions, refinancings, renewals copyrighted or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedpatented materials;
(vii8) restrictions on cash or other deposits or net worth imposed by clients under contracts entered into in the ordinary course of business, including cash paid to any Subsidiary as an advance for media or production expenses;
(9) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance agreements or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party arrangements relating solely to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guaranteeventure; or
(viii10) existing an agreement governing Indebtedness Incurred to Refinance Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (2), (3) or (5) of this Section 3.11(b); provided that such Refinancing agreement is not materially more restrictive with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances contained in the agreement referred to in such clause (2), (3) or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced(5).
Appears in 3 contracts
Samples: Indenture (MDC Partners Inc), Indenture (MDC Partners Inc), Indenture (MDC Partners Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i) to pay dividends (in cash or otherwise) or make any other distributions on any in respect of its Capital Stock of such owned by Parent or any other Restricted Subsidiary owned by the Company or pay any Debt or other obligation owed to Parent or any other Restricted Subsidiary;
, (ii) pay to make loans or advances to Parent or any Indebtedness other Restricted Subsidiary or other obligation owed (iii) to the Company transfer any of its Property to Parent or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply Notwithstanding the foregoing limitation, Parent may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to any encumbrances or restrictions:
exist (i) existing in agreements as any encumbrance or restriction pursuant to any agreement in effect on the Original Issue Date, (ii) any customary (as conclusively determined in good faith by the Chief Financial Officer of Parent) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in the Notesan agreement or instrument governing or relating to Debt contained in any Qualified Credit Facility or Purchase Money Debt; provided, the Subsidiary Guaranteeshowever, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the such encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect permit the distribution of funds to the Holders than those encumbrances Issuer in an amount sufficient for the Issuer to make the timely payment of interest, premium (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or restrictions that are then in effect and that are being extendedrepurchase thereof, refinanced, renewed including upon the occurrence of designated events or replaced;
(ii) existing under circumstances or by reason virtue of applicable lawacceleration upon an event of default, ruleor by way of redemption or retirement at the option of the holder of the Debt, regulation including pursuant to offers to purchase) according to the terms of this Indenture and the Securities and other Debt that is solely an obligation of the Issuer, but provided further, however, that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or order;
(iii) with respect to sale of all or any Person or substantial part of the property or assets of such Person acquired by the Company Parent or any Restricted Subsidiary, existing at the time of such acquisition customary (as so determined) restrictions on transactions with affiliates and not incurred in contemplation thereofcustomary (as so determined) subordination provisions governing Debt owed to Parent or any Restricted Subsidiary, (iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such Person or the property or assets of such Person so acquired, and (iv) any extensionsencumbrance or restriction pursuant to an agreement effecting a refinancing of Debt Incurred pursuant to an agreement referred to in clause (i), refinancings(ii) or (iii) of this paragraph (b); provided, renewals or replacements thereof; provided however, that the encumbrances and restrictions provisions contained in any such extension, refinancing, renewal agreement relating to such encumbrance or replacement, taken as a whole, restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof, (v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Debt of Parent or a Restricted Subsidiary otherwise permitted under this Indenture, but only to the Holders than those encumbrances or extent such restrictions that are then restrict the transfer of the Property subject to such security agreement, (vi) in effect and that are being extendedthe case of clause (iii) of paragraph (a) above, refinanced, renewed or replaced;
customary provisions (ivA) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset Property that is subject to a lease or lease, license, (ii) exist by virtue of any Lien on, or agreement to transfer, option conveyance or similar right with respect contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to any IndebtednessDebt, and that do not, individually or in the aggregate, detract from the value of property or assets Property of the Company Parent or any Restricted Subsidiary in any manner material to the Company Parent or any Restricted Subsidiary;
, (vvii) any encumbrance or restriction with respect to a Restricted Subsidiary and imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, Property of such Restricted Subsidiary Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is permitted by Section 4.05abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates pursuant to this Indenture and the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSecurities.
Appears in 2 contracts
Samples: Indenture (Level 3 Communications Inc), Indenture (Level 3 Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except Until the Loan has been fully and indefeasibly paid as provided belowand when due, the Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary toto do any one of the following:
(i) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do foregoing negative covenants shall not apply to restrict any encumbrances or restrictions:
(i) existing on the Closing Date , in this Agreement or any other agreements as or instruments in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, Closing Date and any extensions, refinancings, renewals or replacements of any of the foregoing such agreements; provided that the encumbrances and restrictions in any such extensionextensions, refinancingrefinancings, renewal renewals or replacement, taken as a whole, replacements are no more restrictive less favorable in any material respect to the Holders Holder than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued (or, in the case of Acquired Preferred Stock, terms of such Acquired Preferred Stock) if the encumbrance or restriction applies only in the event of a default with respect to a financial covenant contained in such Indebtedness or agreement (or, in the case of Acquired Preferred Stock, upon the default in the payment of dividends upon such Acquired Preferred Stock) and such encumbrance or restriction is not materially more disadvantageous to Holder than is customary in comparable financings (as determined by the Company) and the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Note;
(iii) existing under or by reason of applicable law, rule, regulation or order;
(iiiiv) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ivv) that otherwise would be prohibited by in the provision described in case of clause (iv) of sub-Section 4.08(a5.2(a), (A) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is, or is subject to to, a lease or lease, purchase mortgage obligation, license, conveyance or contract or similar property or asset, (iiB) exist existing by virtue of any Lien ontransfer of, or agreement to transfer, option or similar right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture Agreement or (iiiC) do arising or agreed to in the ordinary course of business, not relate 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 Subsidiaries in any manner material to the Company or any Restricted Subsidiary;; or
(vvi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;Subsidiary.
(vic) with respect to Nothing contained in this Section 5.2 shall prevent the Company or any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are from (i) customary for such types of agreements and creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.7 or (ii) would not, at restricting the time agreed to, be expected to materially and adversely affect the ability sale or other disposition of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities property or assets of the Company or a any of its Restricted Subsidiary Subsidiaries that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability secure Indebtedness of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under of its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSubsidiaries.
Appears in 2 contracts
Samples: Loan Agreement (Startec Global Communications Corp), Loan Agreement (Startec Global Communications Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in paragraph (b) below, the Company shall Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on any or in respect of its Capital Stock of such to the Borrower or any other Restricted Subsidiary owned by or pay any Indebtedness owed to the Company Borrower or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary; or
(iviii) sell, lease or transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(aParagraph (a) do above will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i) existing in agreements as applicable law;
(ii) this Agreement;
(iii) any encumbrances or restrictions in effect on as of the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, Effective Date and any encumbrances or restrictions contained in extensions, refinancings, renewals or replacements of any of Indebtedness outstanding on the foregoing agreements; provided Original Effective Date that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no not materially more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or existence on the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedOriginal Effective Date;
(iv) that otherwise would be prohibited by the provision described in clause (iv) customary non-assignment provisions of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a any contract and customary manner the subletting, provisions restricting assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 subletting in any manner material to the Company or lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Agreement;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary and of the Borrower imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, of such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedsold;
(vii) existing customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) arising in connection with the Incurrence of Indebtedness of a Guarantor after the Original Effective Date; provided, that such encumbrances or restrictions (1) relate solely to such Guarantor, are required in order to effect such financing and are not more restrictive on the ability of such Guarantor to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted and (2) the proposed encumbrances or restrictions, taken together with other encumbrances or restrictions on the payments, distributions, loans, advances or transfers referred to above in effect with respect to Restricted Subsidiaries, do not prevent the Restricted Subsidiaries of the Borrower from making distributions to the Borrower sufficient to pay amounts payable in respect of its Indebtedness due during the 12 month period immediately following the Incurrence of such Indebtedness;
(ix) arising in connection with the Incurrence of Indebtedness by a Permitted Joint Venture after the Original Effective Date, provided, that such encumbrances or restrictions are required in order to effect such financing and are not more restrictive on the ability of the applicable Permitted Joint Venture to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted; or
(x) customary provisions in joint venture agreements and other similar agreementsagreements entered into in the ordinary course of business consistent with past practice. Nothing contained in this Section 5.09 shall prevent the Borrower or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by Section 5.10 or (2) restricting the extent such encumbrance sale or restriction relates to the activities other disposition of property or assets of the Company Borrower or a any of its Restricted Subsidiary Subsidiaries that secure Indebtedness provided such restriction is a party to such joint venture and if (as determined in good faith otherwise permitted by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSection 5.10.
Appears in 2 contracts
Samples: Loan Agreement (Vitro Sa De Cv), Loan Agreement (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions distribution on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: it being understood that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, Guarantees or this Indenture, the Security Documents, Indenture or under any Permitted Pari Passu Secured Indebtedness of the Company Guarantee, or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that that, the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of under Section 4.08(a4.08(a)(iv) if they arise, or are agreed to, in the ordinary course of business andbusiness, and that (ia) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (iib) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iiic) do not relate to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiaryrespect;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viiiSection 4.05(b)(xi), (xivSection 4.05(b)(xiv), (xviSection 4.05(b)(xv), (xviiSection 4.05(b)(xvi), (xviii), (xixSection 4.05(b)(xvii) or (xx) of and Section 4.05(b4.05(b)(xix) if, as determined by the Board of Directors, the encumbrances or restrictions are (iA) customary for such types type of agreements agreement and (iiB) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company or any Subsidiary Guarantor to make required payment on the Notes andor its Subsidiary Guarantee, with respect to Indebtedness permitted under clauses (viii)as the case may be, (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreementsthereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in shareholders agreements, joint venture agreements and other similar agreementsagreements permitted under this Indenture, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee Guarantee;
(viii) customary provisions contained in agreements evidencing Liens incurred in accordance with Section 4.07 that limit the right of the debtor to dispose of the assets which are subject to the Liens;
(ix) restrictions on cash or JV Subsidiary Guaranteeother deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; or
(viiix) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Unrestricted Subsidiary or its subsidiaries or the property or assets of such Unrestricted Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.
Appears in 2 contracts
Samples: Indenture (eHi Car Services LTD), Indenture (eHi Car Services LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create directly or otherwise indirectly, cause or permit suffer to exist or become effective or enter into any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company (i) to pay dividends or make any other distributions on any in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary;
Subsidiary of the Company; (iiiii) to make loans or advances to the Company or any other Restricted SubsidiarySubsidiary of the Company; or
or (iviii) sell, lease or to transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for Subsidiary of the avoidance of doubt the following shall not be deemed to constitute such an Company, except:
(a) any encumbrance or restriction: restriction pursuant to an agreement in effect at the Issue Date (iincluding, but not limited to, the Senior Discount Notes Indenture) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by amendment, restatement, renewal or replacement of such agreement, so long as the Company or any Restricted Subsidiary; encumbrances and (iii) restrictions are not materially more restrictive than those in the provisions contained agreement in documentation governing Indebtedness requiring transactions between or among effect on the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.Issue Date;
(b) The provisions any encumbrance or restriction pursuant to an agreement relating to an acquisition of Section 4.08(a) do not apply to any property, so long as the encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect agreement relate solely to the Holders than those encumbrances property so acquired (and are not or restrictions that are then were not created in effect and that are being extended, refinanced, renewed anticipation of or replacedin connection with the acquisition thereof);
(iic) existing under any encumbrance or by reason of applicable law, rule, regulation or order;
(iii) with respect restriction relating to any Person or Debt of any Restricted Subsidiary of the property or assets of Company at the date on which such Person Restricted Subsidiary was acquired by the Company or any Restricted Subsidiary, existing at Subsidiary of the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person Company (other than Debt incurred by such Person Restricted Subsidiary in connection with or in anticipation of its acquisition);
(d) any encumbrance or restriction pursuant to an agreement effecting a permitted refinancing of Debt issued pursuant to an agreement referred to in the property foregoing clauses (a) through (c), or assets permitted replacement or increase of such Person Debt referred to in the foregoing clause (a) so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that long as the encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, refinancing agreement are no not materially more restrictive than the encumbrances and restrictions contained in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are agreements governing the Debt being extended, so refinanced, renewed or replaced;
(ive) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, customary provisions restricting subletting or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or licenselease, (ii) exist by virtue of any Lien on, or agreement to transfer, option license or similar right with respect to any property or assets contract of the Company or any Restricted Subsidiary not otherwise prohibited of the Company or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(f) any encumbrance or restriction arising out of any sale of accounts receivable in the ordinary course (including in connection with a financing transaction) to or by this Indenture (i) an Accounts Receivable Subsidiary or (iiiii) do to Persons that are not relate Affiliates of the Company or any Subsidiary of the Company;
(g) any encumbrance or restriction on the sale or other disposition of assets or property securing Debt as a result of a Permitted Lien on such assets or property (including, without limitation, customary restrictions relating to assets securing the Credit Agreement, any IndebtednessVendor Debt or any Telecommunications Assets Debt under the applicable security documents); and
(h) any encumbrance or restriction contained in contracts for sales of assets permitted by Section 1016 with respect to the assets to be sold pursuant to such contract. Nothing contained in this Section 1013 shall prevent the Company or any of its Restricted Subsidiaries from (1) creating, and that do notincurring, individually assuming or suffering to exist any Liens otherwise permitted in Section 1011 or (2) restrictions on the aggregate, detract from the value sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary in any manner material Subsidiaries to the extent that such property or assets secure Debt of the Company or any of its Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and Subsidiaries not incurred or secured in contemplation violation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedthis Indenture.
Appears in 2 contracts
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in paragraph (b) below, the Company shall Issuer will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such to the Issuer or any other Restricted Subsidiary owned by or pay any Indebtedness owed to the Company Issuer or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii2) make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
(iv3) sell, lease or transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(aParagraph (a) do above will not apply to encumbrances or restrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture;
(3) any encumbrances or restrictions:
(i) existing in agreements as restrictions in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness as of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, Issue Date and any encumbrances or restrictions contained in extensions, refinancings, renewals or replacements of any of Indebtedness outstanding on the foregoing agreements; provided Issue Date that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no not materially more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedexistence on the Issue Date;
(ii4) existing under customary non-assignment provisions of any contract and customary provisions restricting assignment or by reason subletting in any lease governing a leasehold interest of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at or any customary restriction on the time ability of such acquisition and a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under the Indenture;
(5) any instrument governing Acquired Indebtedness not incurred Incurred in connection with, or in anticipation or contemplation thereofof, the relevant acquisition, merger or consolidation, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property properties or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted SubsidiaryPerson so acquired;
(v6) restrictions with respect to a Restricted Subsidiary and of the Issuer imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, of such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13being sold;
(vi7) customary restrictions imposed on the transfer of copyrighted or patented materials;
(8) arising in connection with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause of a Note Guarantor after the Issue Date; provided, that such encumbrances or restrictions (viii)i) relate solely to such Note Guarantor, are required in order to effect such financing and are not more restrictive on the ability of such Note Guarantor to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted and (xiv)ii) the proposed encumbrances or restrictions, taken together with other encumbrances or restrictions on the payments, distributions, loans, advances or transfers referred to above in effect with respect to Restricted Subsidiaries, do not prevent the Restricted Subsidiaries of the Issuer from making distributions to the Issuer sufficient to pay amounts payable in respect of its Indebtedness due during the 12 month period immediately following the Incurrence of such Indebtedness;
(xvi)9) arising in connection with the Incurrence of Indebtedness by a Permitted Joint Venture after the Issue Date, (xvii)provided, (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the that such encumbrances or restrictions are (i) customary for required in order to effect such types of agreements financing and (ii) would not, at the time agreed to, be expected to materially and adversely affect are not more restrictive on the ability of the Company applicable Permitted Joint Venture to make required payment on the Notes andpayments, with respect distributions, loans, advances or transfers referred to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) above than necessarily and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreementscustomarily accepted; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;or
(vii10) existing in customary provisions in joint venture agreements and other similar agreementsagreements entered into in the ordinary course of business consistent with past practice. Nothing contained in this Section 3.12 shall prevent the Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by Section 3.13 or (2) restricting the extent such encumbrance sale or restriction relates to the activities other disposition of property or assets of the Company Issuer or a any of its Restricted Subsidiary Subsidiaries that secure Indebtedness provided such restriction is a party to such joint venture and if (as determined in good faith otherwise permitted by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSection 3.13.
Appears in 2 contracts
Samples: Indenture (Vitro Sa De Cv), Indenture (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed distribution to the Company or any other Restricted Subsidiary;
Subsidiary on its Capital Stock (iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock Equity Interests in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock; ) 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 Restricted Subsidiary;
(ii2) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted SubsidiarySubsidiary shall not be deemed a restriction on the ability to make loans or advances); and or
(iii3) the provisions contained in documentation governing Indebtedness requiring transactions between sell, lease or among transfer any of its properties or assets to the Company and or any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basisSubsidiary.
(b) The provisions of restrictions in Section 4.08(a) do hereof will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i1) Existing Indebtedness, existing in agreements and any other contractual encumbrances or restrictions as in effect on the Original Issue Date (including any Credit Facilities existing on the Issue Date) or any agreements governing Indebtedness incurred by the Partnership Parks Entities pursuant to clause (25) of Section 4.09(b); provided that, or in upon the Notes, consummation of the Subsidiary Guarantees, the JV Subsidiary GuaranteesMerger, this Indenture, clause (1) shall also include the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, HoldCo Credit Agreement and any extensions, refinancings, renewals or replacements of Existing Indebtedness and existing agreements and any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those other contractual encumbrances or restrictions that are then of HoldCo and its Subsidiaries in effect and that are being extended, refinanced, renewed or replacedexistence on the closing date of the Merger;
(ii2) existing under or by reason of applicable law, rule, regulation or order;
(iii3) with respect any instrument governing Acquired Debt and any other agreement or instrument of an acquired Person or any of its Subsidiaries as in effect at the time of acquisition (except to the extent such Indebtedness or other agreement or instrument was incurred 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 such Person the Person, so acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereofits Subsidiaries;
(4) Refinancing Indebtedness (as defined under Section 4.09 hereof); provided that the encumbrances restrictions contained in the agreements governing such Refinancing Indebtedness are no more restrictive than those contained in the agreements governing the Indebtedness being Refinanced;
(5) agreements governing Indebtedness of the Company ranking pari passu with the Notes; provided that except as set forth in clause (22) below such restrictions are no more restrictive taken as a whole than those imposed by this Indenture and the Notes;
(6) any restrictions in imposed by any agreement relating to Indebtedness incurred under the provisions of Section 4.09, to the extent (i) such extension, refinancing, renewal or replacementrestrictions are not materially more restrictive, taken as a whole, than the restrictions contained in this Indenture (as determined in good faith by the Company) or (ii) are no more restrictive market terms at the time of incurrence of such Indebtedness (as determined in any material respect to good faith the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedCompany);
(iv7) that otherwise would be prohibited by the provision described customary provisions in clause (iv) leases, sub-leases, licenses or sublicenses or sublicenses of Section 4.08(a) if they arise, or are agreed to, intellectual property and other similar agreements entered into in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property consistent with past practice or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiaryindustry norm;
(v8) customary provisions restricting assignment of any agreement;
(9) with respect to a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, such a Restricted Subsidiary or any of its assets in compliance with the terms of this Indenture that is permitted restricts distributions by Section 4.05, Section 4.09 and Section 4.13that Restricted Subsidiary pending such sale or other disposition;
(vi10) with respect to any Restricted Subsidiary provisions limiting the disposition or distribution of assets or property (including cash) in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and imposed pursuant to an agreement that has been other similar agreements (including agreements entered into for the Incurrence of Indebtedness permitted described under clause (viiiin connection with a Restricted Investment), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, agreements applicable to the extent Equity Interests or Indebtedness of such joint venture, which limitation is applicable only to the assets that are the subject of such agreements;
(11) Permitted Liens or any Liens otherwise permitted by Section 4.12;
(12) Secured Indebtedness otherwise permitted to be incurred by this Indenture that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(13) Purchase Money Indebtedness or Capital Lease Obligations that imposes restrictions of the type described in clause (3) of Section 4.08(a) on the property so acquired;
(14) provisions in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(15) restrictions in Investments in Persons that are Restricted Subsidiaries;
(16) any encumbrance or restriction relates pursuant to obligations under Hedging Agreements;
(17) Indebtedness or other agreements including, without limitation, agreements described in clause (9) above, of any Restricted Subsidiary that is not a Guarantor that impose restrictions solely on such Restricted Subsidiary and its Subsidiaries;
(18) any restriction on cash or other deposits or net worth imposed by customers, suppliers, landlords, licensors or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the activities ordinary course of business or consistent with past practice or industry norm or customary restrictions on cash or other deposits or net worth arising in connection with any Permitted Liens, so long as the Company has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Company and the Restricted Subsidiaries to meet their ongoing obligations under the Notes;
(19) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business or consistent with industry practice; provided that such agreement prohibits the encumbrance or restriction of solely the property or assets of the Company or a such Restricted Subsidiary that is a party are subject to such joint venture and if (as determined in good faith by the Board of Directors)agreement;
(i20) customary provisions restricting subletting or assignment (including any change of control deemed an assignment) of any lease governing a leasehold interest;
(21) restrictions on cash or other deposits imposed by customers under contracts entered into in the encumbrances or ordinary course of business;
(22) restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected contained in any Permitted Securitization Document with respect to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary GuaranteeSpecial Purpose Securitization Subsidiary; or
(viii23) existing any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (22) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the Company’s good faith judgment, not materially more restrictive as a whole with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedrefinancing.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions on any or in respect of its Capital Stock (it being understood that the priority of such Restricted Subsidiary owned by any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the Company or any other Restricted Subsidiaryability to make distributions on Capital Stock);
(iib) make loans or advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(ivc) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that except for such encumbrances or restrictions existing under or by reasons of:
(1) applicable law;
(2) this Indenture and/or the Security Documents;
(3) the Credit Agreement and/or the documentation for the avoidance First Priority Liens;
(4) customary non-assignment provisions of doubt the following shall not be deemed to constitute such an any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(5) any instrument governing Acquired Indebtedness, which encumbrance or restriction: (i) restriction is not applicable to any Person, or the priority properties or assets of any Preferred Stock in receiving dividends Person, other than the Person or liquidating distributions prior to dividends the properties or liquidating distributions being paid assets of the Person so acquired;
(6) agreements existing on Common Stock; (ii) the subordination of loans or advances made Issue Date to the Company or extent and in the manner such agreements are in effect on the Issue Date;
(7) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to any Restricted Subsidiary than those in effect with respect to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any such Restricted Subsidiary or between or among any Restricted Subsidiary pursuant to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, ;
(8) any instrument governing Indebtedness of a Foreign Restricted Subsidiary;
(9) customary restrictions on the transfer of any property or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, assets arising under a security agreement governing a Lien permitted under this Indenture, ;
(10) secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.03 and Section 4.15 that limit the Security Documents, or under any Permitted Pari Passu Secured Indebtedness right of the Company debtor to dispose of the assets securing such Indebtedness;
(11) any agreement governing Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (5), (6) or (8) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any Subsidiary Guarantor Pledgor such Refinancing Indebtedness are not materially more restrictive than the provisions relating to such encumbrance or Pari Passu Subsidiary Guarantee restriction contained in agreements referred to in such clause (2), (5), (6) or (8);
(12) any agreement governing the sale or disposition of any Restricted Subsidiary Guarantor which restricts dividends and distributions pending such sale or disposition;
(13) any JV agreement, instrument or Lien placing encumbrances or restrictions applicable only to a Finance Subsidiary Guarantor, and or an Accounts Receivable Entity; or
(14) any extensions, refinancings, renewals or replacements of any of the foregoing agreementsagreement governing Indebtedness permitted to be incurred pursuant to Section 4.03; provided that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in any such extension, refinancing, renewal or replacementIndebtedness, taken as a whole, are no not materially more restrictive in any material respect to than the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, provisions contained in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to any Indebtedness, and that do not, individually Credit Agreement or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary Indenture as in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment effect on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedIssue Date.
Appears in 1 contract
Samples: Indenture (Tenneco Automotive Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iva)(iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;; or
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause clauses (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xxxix) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xxxix) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make distributions on or in respect of Capital Stock; );
(ii2) make loans or advances, or to pay any Indebtedness or other obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made by a Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness Incurred or obligations incurred or owed by the Company or such other Restricted Subsidiary, or of Indebtedness or any other obligation owed by any Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or obligations incurred or owed such Restricted Subsidiary shall not be deemed a restriction on the ability of a Restricted Subsidiary to make loans or advances or to pay such Indebtedness or such other obligation);
(3) guarantee any Indebtedness or any other obligation of the Company or any Restricted Subsidiary; and or
(iii4) the provisions contained in documentation governing Indebtedness requiring transactions between transfer any of its property or among assets to the Company and or any other Restricted Subsidiary Subsidiary, except for such encumbrances or between restrictions existing under or among any Restricted Subsidiary by reason of:
(1) With respect to be on fair and reasonable terms or on an arm’s length basis.clauses (1)-(4) above:
(a) applicable law;
(b) The provisions any encumbrance or restriction pursuant to or by reason of Section 4.08(aan agreement in effect at the Issue Date;
(c) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, this Supplemental Indenture or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted other indentures governing Pari Passu Secured Indebtedness; provided, however, that the provisions relating to such encumbrances or restriction contained in any such other indenture are no less favorable to the Holders in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrances or restrictions contained in this Supplemental Indenture or (ii) instruments governing other Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the foregoing agreementsIssue Date in accordance with Section 4.06; provided that the encumbrances provisions relating to such encumbrance or restriction contained in such instruments are not materially less favorable to the Company and restrictions in any such extension, refinancing, renewal or replacement, its Restricted Subsidiaries taken as a whole, are no more restrictive as determined by the Company in any material respect to good faith, than the Holders than those encumbrances or restrictions that are then provisions contained in the Senior Credit Facility and in this Supplemental Indenture as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(iid) existing under the Senior Credit Facility;
(e) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Industry Investments”;
(f) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(g) any encumbrance or restriction pursuant to or by reason of an instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable lawto such Restricted Subsidiary, rule, regulation or order;
(iii) with respect to any Person or the property properties or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at other than the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any the Person other than such Person so acquired;
(h) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or the property disposition of Capital Stock or assets of such Person so acquiredRestricted Subsidiary to be consummated in accordance with the terms of this Supplemental Indenture solely in respect of the assets or Capital Stock to be sold or disposed of;
(i) any instrument governing a Permitted Lien, to the extent and any extensions, refinancings, renewals only to the extent such instrument restricts the transfer or replacements thereof; provided that the other disposition of assets subject to such Permitted Lien;
(j) encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, contracts entered into in the ordinary course of business andbusiness, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vk) with respect an agreement governing Refinancing Indebtedness incurred to a Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the sale referred to in clause (b), (c), (d) or disposition of all (g) above or substantially all of the Capital Stock ofthis clause (k), or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to contained in any Restricted Subsidiary and imposed pursuant amendment to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viiib), (xivc), (xvi), (xvii), (xviii), (xixd) or (xxg) of Section 4.05(b) ifabove or this clause (k); provided, however, that the provisions relating to such encumbrance or restriction contained in any such agreement governing Refinancing Indebtedness or amended agreement are, taken as a whole, no less favorable to the Holders in any material respect as determined by the Board of DirectorsDirectors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the applicable agreement referred to in such clause (b), (c), (d) or (g) or this clause (k);
(l) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Supplemental Indenture;
(m) the encumbrances issuance of Preferred Stock by a Restricted Subsidiary or restrictions are (i) customary for the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such types Preferred Stock is permitted pursuant to Section 4.06 and the terms of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock); and
(n) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the Company to make required payment on the Notes ordinary course of business; and,
(2) with respect to Indebtedness permitted under clauses clause (viii), (xvi), (xvii), (xviii), (xix4) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;above only:
(viia) existing any encumbrance or restriction contained in customary provisions in joint venture agreements and other similar security agreements, mortgages, purchase money agreements, Capitalized Lease Obligations or similar instruments securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction relates restricts the transfer of the property subject to such security agreements, mortgages, purchase money agreements or similar instruments;
(b) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(c) provisions with respect to the activities disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements, unitization agreements and other agreements that are customary in the Crude Oil and Natural Gas Business and entered into in the ordinary course of business; and
(d) provisions limiting the disposition or distribution of assets or property in, or transfer of Capital Stock of, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into (i) in the ordinary course of business, consistent with past practice or (ii) with the approval of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Company’s Board of Directors)
(i) , which limitations are applicable only to the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would notassets, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets Capital Stock that are the subject of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedagreements.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i) to pay dividends (in cash or otherwise) or make any other distributions on any in respect of its Capital Stock of such owned by Parent or any other Restricted Subsidiary owned by the Company or pay any Debt or other obligation owed to Parent or any other Restricted Subsidiary;
, (ii) pay to make loans or advances to Parent or any Indebtedness other Restricted Subsidiary or other obligation owed (iii) to the Company transfer any of its Property to Parent or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply Notwithstanding the foregoing limitation, Parent may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to any encumbrances or restrictions:
exist (i) existing in agreements as any encumbrance or restriction pursuant to any agreement in effect on the Original Issue Date, or in including the Existing Credit Facility and the Existing Notes, (ii) any customary (as conclusively determined in good faith by the Chief Financial Officer of Parent) encumbrance or restriction applicable to a Restricted Subsidiary Guaranteesthat is contained in an agreement or instrument governing or relating to Debt contained in any Qualified Credit Facility or Purchase Money Debt; provided, the JV Subsidiary Guaranteeshowever, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the such encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect permit the distribution of funds to the Holders than those encumbrances Issuer in an amount sufficient for the Issuer to make the timely payment of interest, premium (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or restrictions that are then in effect and that are being extendedrepurchase thereof, refinanced, renewed including upon the occurrence of designated events or replaced;
(ii) existing under circumstances or by reason virtue of applicable lawacceleration upon an event of default, ruleor by way of redemption or retirement at the option of the holder of the Debt, regulation including pursuant to offers to purchase) according to the terms of this Indenture and the Securities and other Debt that is solely an obligation of the Issuer, but provided further, however, that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or order;
(iii) with respect to sale of all or any Person or substantial part of the property or assets of such Person acquired by the Company Parent or any Restricted Subsidiary, existing at the time of such acquisition customary (as so determined) restrictions on transactions with affiliates and not incurred in contemplation thereofcustomary (as so determined) subordination provisions governing Debt owed to Parent or any Restricted Subsidiary, (iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such Person or the property or assets of such Person so acquired, (iv) any encumbrance or restriction pursuant to an agreement relating to any Debt of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 1011 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries, (v) any extensionsencumbrance or restriction pursuant to an agreement effecting a refinancing of Debt Incurred pursuant to an agreement referred to in clause (i), refinancings(ii) or (iii) of this paragraph (b); provided, renewals or replacements thereof; provided however, that the encumbrances and restrictions provisions contained in any such extension, refinancing, renewal agreement relating to such encumbrance or replacement, taken as a whole, restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof, (vi) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Debt of Parent or a Restricted Subsidiary otherwise permitted under this Indenture, but only to the Holders than those encumbrances or extent such restrictions that are then restrict the transfer of the Property subject to such security agreement, (vii) in effect and that are being extendedthe case of clause (iii) of paragraph (a) above, refinanced, renewed or replaced;
customary provisions (ivA) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset Property that is subject to a lease or lease, license, (ii) exist by virtue of any Lien on, or agreement to transfer, option conveyance or similar right with respect contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to any IndebtednessDebt, and that do not, individually or in the aggregate, detract from the value of property or assets Property of the Company Parent or any Restricted Subsidiary in any manner material to the Company Parent or any Restricted Subsidiary;
, (vviii) any encumbrance or restriction with respect to a Restricted Subsidiary and imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, Property of such Restricted Subsidiary Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is permitted by Section 4.05abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (iiix) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates pursuant to this Indenture and the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSecurities.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall not, and shall not permit any Restricted Subsidiary of the Company to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on which, by its terms, restricts the ability of any Restricted Subsidiary to:
of the Company to (i) pay dividends or make any other distributions on any such Restricted Subsidiary's Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iiiii) make any loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary of the Company, or (iviii) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for Subsidiary of the avoidance Company, except for, in the case of doubt the following shall not be deemed to constitute such an encumbrance or restriction: clauses (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; ), (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) above, any restrictions (a) existing under the Certificate of Designations or the Exchange Indenture and any restrictions existing on the Closing Date pursuant to any agreement relating to Existing Indebtedness of the Company's Restricted Subsidiaries, (b) pursuant to an agreement relating to Indebtedness incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company and outstanding on such date and not incurred in anticipation of becoming a Restricted Subsidiary, (c) imposed by virtue of applicable corporate law or regulation and relating solely to the payment of dividends or distributions to stockholders, (d) with respect to restrictions of the nature described in clause (iii) above, included in a contract entered into in the ordinary course of business and consistent with past practices that contains provisions restricting the assignment of such contract, (e) pursuant to an agreement effecting a renewal, extension, refinancing, refunding or replacement of Indebtedness referred to in (a) or (b) above; provided, however, that the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Datesuch renewal, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal refunding or replacementreplacement agreement relating to such encumbrance or restriction, taken as a whole, are no not materially more restrictive than the provisions contained in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or agreement the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation subject thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (yf) any Subsidiary Guarantor which shall not in the aggregate cause the Company not to have the funds necessary to pay the principal of, premium, if any, or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or interest, including Special Interest, on the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture Securities at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedtheir Stated Maturity.
Appears in 1 contract
Samples: Indenture (Clark Usa Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall Abraxas will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;Stock,
(iib) make loans or advances to, or pay any Indebtedness or other obligation owed to the Company to, Abraxas or any other Restricted Subsidiary;,
(iiic) make loans or advances to the Company guarantee any Indebtedness or any other obligation of Abraxas or any Restricted Subsidiary; , or
(ivd) sell, lease or transfer any of its property or assets to the Company Abraxas or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute Subsidiary (each such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior , a "Payment Restriction"). The preceding will not apply, however, to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of the following (which are excluded from the term "Payment Restriction"): (i) applicable law, rule(ii) this Indenture, regulation the Indenture governing the Old Notes, the First Lien Indenture Notes or order;
any Security Document, (iii) with respect customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary, (iv) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person such Restricted Subsidiary, or the property properties or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at other than the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) agreements existing on the Issue Date to the extent and in the manner such agreements were in effect on the Issue Date, (vi) customary restrictions with respect to a Restricted Subsidiary and imposed of Abraxas 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, of such Restricted Subsidiary that is permitted by Section 4.05to be consummated in accordance with the terms of this Indenture solely in respect of the assets or Capital Stock to be sold or disposed of, Section 4.09 (vii) any instrument governing a Permitted Lien, to the extent and Section 4.13;
only to the extent such instrument restricts the transfer or other disposition of assets subject to such Permitted Lien, or (viviii) with respect an agreement governing Refinancing Indebtedness incurred to any Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viiiii), (xiv), (xvi), (xvii), (xviii), (xixiv) or (xxv) of Section 4.05(b) ifabove; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Refinancing Indebtedness are no less favorable to the Holders in any material respect as determined by the Board of Directors, Directors of Abraxas in its reasonable and good faith judgment than the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected provisions relating to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates contained in the applicable agreement referred to the activities or assets of the Company or a Restricted Subsidiary that is a party to in such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and clause (ii), (iv) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedv).
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in paragraph (b) below, the Company shall IRSA will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such to IRSA or any other Restricted Subsidiary owned by the Company or pay any Indebtedness owed to IRSA or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii2) make loans or advances to the Company IRSA or any other Restricted Subsidiary; or
(iv3) sell, lease or transfer any of its property or assets to the Company IRSA or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(aParagraph (a) do above will not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of:
(1) applicable law, law rule, regulation or order;
(iii2) with respect to any Person this Indenture or the property Securities of any series;
(3) the terms of any agreements governing Indebtedness in existence on the Issue Date, and any amendment, modification, restatement, renewal, restructuring, replacement or assets refinancing thereof;
(4) customary non-assignment provisions of such Person acquired by the Company any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, existing at or any customary restriction on the time ability of such acquisition and a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(5) any instrument governing Acquired Indebtedness not incurred Incurred in connection with, or in anticipation or contemplation thereofof, the relevant acquisition, merger or consolidation, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property properties or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted SubsidiaryPerson so acquired;
(v6) restrictions with respect to a Restricted Subsidiary and of IRSA imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(7) the terms of any agreements governing Indebtedness of Alto Xxxxxxx X.X. or Shopping Alto Xxxxxxx X.X. permitted to be Incurred subsequent to the Issue Date in accordance with the covenant described above under the caption Section 3.16; provided that (i) such agreements permit Alto Xxxxxxx X.X. or Shopping Alto Xxxxxxx X.X., as the case may be, to pay annual dividends or make other distributions in respect of its Capital Stock (so long as (a) no default or event of default has occurred and is continuing under the relevant agreement, or would occur immediately after giving effect to such dividend or distribution and (b) Alto Xxxxxxx X.X. or Shopping Alto Palermo, as the case may be, has a Consolidated Interest Coverage Ratio or similar coverage ratio of at least 2.0 to 1) in an amount equal to at least 35% of the Consolidated Net Income of Alto Xxxxxxx X.X. or Shopping Alto Xxxxxxx X.X., as the case may be, for the relevant fiscal year or (ii) the terms of such agreements, taken as a whole, do not have the effect of imposing restrictions on the payment of dividends to IRSA that are materially more restrictive than the restrictions on the making of Restricted Payments by IRSA in the Securities, as conclusively determined in good faith by the Board of Directors of IRSA;
(8) Liens permitted to be incurred under the provisions of the covenant described below under the caption Section 3.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(9) provisions limiting the payment of dividends in the organizational documents, shareholders’ agreements, joint venture agreements or similar documents of, or property and assets ofrelated to, such Restricted Subsidiary Subsidiaries that is permitted by Section 4.05, Section 4.09 and Section 4.13are not Wholly Owned Subsidiaries or which have been entered into in the ordinary course of business with the approval of IRSA’s Board of Directors;
(vi10) restrictions contained in the terms of Purchase Money Indebtedness, mortgage financing or Capitalized Lease Obligations Incurred in the ordinary course of business; provided that such restrictions relate only to the assets acquired or financed with respect such Indebtedness;
(11) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business; or
(12) customary restrictions imposed on the transfer of copyrighted or patented materials;
(13) net worth provisions in leases and other agreements entered into in the ordinary course of business;
(14) any restriction on the ability of a Restricted Subsidiary and imposed to pay dividends or make any other distributions or pay any Indebtedness to IRSA or any other Restricted Subsidiary during the continuance of a default or event of default under Indebtedness other than the Securities;
(15) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause referred to in clauses (viii2), (xiv3), (xvi), (xvii), (xviii), (xix5) or (xx7) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreementsabove; provided that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in any such extension, refinancing, renewal or replacementIndebtedness, taken as a whole, are no more restrictive less favorable in any material respect to IRSA than the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, relating to the extent such encumbrance or restriction relates contained in agreements referred to the activities in such clause (2), (3), (5) or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors7), respectively, above; and
(i16) the encumbrances restrictions customarily granted in connection with securitization, factoring or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions discounting involving receivables that are then imposed in effect and that are being extended, refinanced, renewed or replacedconnection with a Receivables Transaction.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make distributions on or in respect of Capital Stock; );
(ii2) make loans or advances, or to pay any Indebtedness or other obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made by a Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness Incurred or obligations incurred or owed by the Company or such other Restricted Subsidiary, or of Indebtedness or any other obligation owed by any Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or obligations incurred or owed by such Restricted Subsidiary shall not be deemed a restriction on the ability of a Restricted Subsidiary to make loans or advances or to pay such Indebtedness or such other obligation);
(3) guarantee any Indebtedness or any other obligation of the Company or any Restricted Subsidiary; and or
(iii4) the provisions contained in documentation governing Indebtedness requiring transactions between transfer any of its property or among assets to the Company and or any other Restricted Subsidiary Subsidiary, except for such encumbrances or between restrictions existing under or among any Restricted Subsidiary by reason of:
(1) With respect to be on fair and reasonable terms or on an arm’s length basis.clauses (1)-(4) above:
(a) applicable law;
(b) The provisions any encumbrance or restriction pursuant to or by reason of Section 4.08(aan agreement in effect at the Issue Date;
(c) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, this Indenture or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted other indentures governing Pari Passu Secured Indebtedness; provided, however, that the provisions relating to such encumbrances or restriction contained in any such other indenture are no less favorable to the Holders in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrances or restrictions contained in this Indenture or (ii) instruments governing other Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the foregoing agreementsIssue Date in accordance with Section 4.06; provided that the encumbrances provisions relating to such encumbrance or restriction contained in such instruments are not materially less favorable to the Company and restrictions in any such extension, refinancing, renewal or replacement, its Restricted Subsidiaries taken as a whole, are no more restrictive as determined by the Company in any material respect to good faith, than the Holders than those encumbrances or restrictions that are then provisions contained in the Senior Credit Facility and in this Indenture as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(iid) existing under the Senior Credit Facility;
(e) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Industry Investments”;
(f) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(g) any encumbrance or restriction pursuant to or by reason of an instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable lawto such Restricted Subsidiary, rule, regulation or order;
(iii) with respect to any Person or the property properties or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at other than the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any the Person other than such Person so acquired;
(h) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or the property disposition of Capital Stock or assets of such Person so acquiredRestricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the assets or Capital Stock to be sold or disposed of;
(i) any instrument governing a Permitted Lien, to the extent and any extensions, refinancings, renewals only to the extent such instrument restricts the transfer or replacements thereof; provided that the other disposition of assets subject to such Permitted Lien;
(j) encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, contracts entered into in the ordinary course of business andbusiness, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vk) with respect an agreement governing Refinancing Indebtedness incurred to a Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the sale referred to in clause (b), (c), (d) or disposition of all (g) above or substantially all of the Capital Stock ofthis clause (k), or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to contained in any Restricted Subsidiary and imposed pursuant amendment to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viiib), (xivc), (xvi), (xvii), (xviii), (xixd) or (xxg) of Section 4.05(b) ifabove or this clause (k); provided, however, that the provisions relating to such encumbrance or restriction contained in any such agreement governing Refinancing Indebtedness or amended agreement are, taken as a whole, no less favorable to the Holders in any material respect as determined by the Board of DirectorsDirectors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the applicable agreement referred to in such clause (b), (c), (d) or (g) or this clause (k);
(l) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Indenture;
(m) the encumbrances issuance of Preferred Stock by a Restricted Subsidiary or restrictions are (i) customary for the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such types Preferred Stock is permitted pursuant to Section 4.06 and the terms of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock); and
(n) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the Company to make required payment on the Notes ordinary course of business; and,
(2) with respect to Indebtedness permitted under clauses clause (viii), (xvi), (xvii), (xviii), (xix4) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;above only:
(viia) existing any encumbrance or restriction contained in customary provisions in joint venture agreements and other similar security agreements, mortgages, purchase money agreements, Capitalized Lease Obligations or similar instruments securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction relates restricts the transfer of the property subject to such security agreements, mortgages, purchase money agreements or similar instruments;
(b) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(c) provisions with respect to the activities disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements, unitization agreements and other agreements that are customary in the Crude Oil and Natural Gas Business and entered into in the ordinary course of business; and
(d) provisions limiting the disposition or distribution of assets or property in, or transfer of Capital Stock of, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into (i) in the ordinary course of business, consistent with past practice or (ii) with the approval of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Company’s Board of Directors)
(i) , which limitations are applicable only to the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would notassets, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets Capital Stock that are the subject of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedagreements.
Appears in 1 contract
Samples: Indenture (Bill Barrett Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall Xxxxxx Publishing will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of Xxxxxx Publishing to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company Stock;
(2) make loans or advances to Xxxxxx Publishing or any other Restricted Subsidiary;
(ii) Subsidiary or to pay any Indebtedness or other obligation owed to the Company Xxxxxx Publishing or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted SubsidiarySubsidiary of Xxxxxx Publishing; or
(iv3) sell, lease or transfer any of its property or assets to the Company Xxxxxx Publishing or any other Restricted Subsidiary; provided that Subsidiary of Xxxxxx Publishing, except in each case for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of:
(a) applicable law, rule, regulation or order;
(iiib) this Indenture;
(c) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of Xxxxxx Publishing;
(d) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(f) the Credit Agreement;
(g) an agreement governing other Senior Debt or Guarantor Senior Debt permitted to be incurred under this Indenture; provided, however, that, with respect to any Person agreement governing such other Senior Debt or Guarantor Senior Debt, the property provisions relating to such encumbrance or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, restriction are no more restrictive less favorable to Xxxxxx Publishing in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, Directors of Xxxxxx Publishing in its reasonable and good faith judgment than the encumbrances or provisions contained in the Credit Agreement as in effect on the Issue Date;
(h) restrictions are on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected restrictions imposed by any agreement to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness sell assets or Capital Stock permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) this Indenture to any Person pending the closing of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedsale;
(viij) existing in customary provisions in joint venture agreements and other similar agreements, agreements (in each case relating solely to the extent respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business; and
(k) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction relates contained in any such Indebtedness are no less favorable to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (Xxxxxx Publishing in any material respect as determined in good faith by the Board of DirectorsDirectors of Xxxxxx Publishing in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b)
, (id), (e), (g) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedh).
Appears in 1 contract
Samples: Indenture (Oak Ridger LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any such Restricted Subsidiary of the Company to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted SubsidiaryStock;
(ii2) make loans or advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to Subsidiary of the Company or any other Restricted SubsidiaryCompany; or
(iv3) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary GuarantorCompany, and any extensionsexcept, refinancingsin each case, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any for such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of:
(a) applicable law, rule, regulation or order;
(iiib) with respect to the Notes or this Indenture;
(c) customary non-assignment provisions of any Person or the property or assets of such Person acquired by the Company contract or any lease governing a leasehold interest of any Restricted Subsidiary, existing at Subsidiary of the time of such acquisition and not incurred in contemplation thereofCompany;
(d) any instrument governing Acquired Indebtedness, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person properties or assets, other than the property properties or assets of any Person other than such Person or the property or assets of such Person so acquired, ;
(e) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date and any amendments, extensions, refinancings, renewals or replacements thereof; substitutions thereof provided that the encumbrances and restrictions in any terms of such extensionamendments, refinancingextensions, renewal renewals or replacement, taken as a whole, substitutions are no not materially more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, aggregate as determined by the Board of Directors, Directors of the encumbrances or restrictions are Company in its good faith judgment;
(if) customary for restrictions in the Credit Agreement, to the extent and in the manner in effect on the date of effectiveness thereof, and customary restrictions in other agreements governing Permitted Indebtedness to the extent such types of agreements and (ii) restrictions would not, at the time agreed to, not reasonably be expected to materially and adversely affect have an adverse effect on the ability of the Company to make required payment timely pay the principal and interest on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedNotes;
(viig) existing customary restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(h) customary restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(j) in the case of a joint venture or similar entity 50% owned by the Company or a Restricted Subsidiary of the Company, customary provisions in joint venture agreements and other similar agreements, agreements (in each case relating solely to the extent respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business; or
(k) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (b), (d), (e) or (f) above; provided, however, that the provisions relating to such encumbrance or restriction relates to contained in any such Indebtedness are not materially more restrictive in the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (aggregate as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability Directors of the Company in its good faith judgment than the provisions relating to make the required payments on the Notessuch encumbrance or restriction contained in agreements referred to in such clause (b), (d), (e) or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedf).
Appears in 1 contract
Samples: Indenture (Kronos International Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in paragraph (b) below, the Company shall Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on any or in respect of its Capital Stock of such to the Borrower or any other Restricted Subsidiary owned by or pay any Indebtedness owed to the Company Borrower or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary; or
(iviii) sell, lease or transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(aParagraph (a) do above will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i) existing in agreements as applicable law;
(ii) this Agreement;
(iii) any encumbrances or restrictions in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness as of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, Effective Date and any encumbrances or restrictions contained in extensions, refinancings, renewals or replacements of any of Indebtedness outstanding on the foregoing agreements; provided Effective Date that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no not materially more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or existence on the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedEffective Date;
(iv) that otherwise would be prohibited by the provision described in clause (iv) customary non-assignment provisions of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a any contract and customary manner the subletting, provisions restricting assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 subletting in any manner material to the Company or lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Agreement;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary and of the Borrower imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, of such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedsold;
(vii) existing customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) arising in connection with the Incurrence of Indebtedness of a Guarantor after the Effective Date; provided, that such encumbrances or restrictions (1) relate solely to such Guarantor, are required in order to effect such financing and are not more restrictive on the ability of such Guarantor to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted and (2) the proposed encumbrances or restrictions, taken together with other encumbrances or restrictions on the payments, distributions, loans, advances or transfers referred to above in effect with respect to Restricted Subsidiaries, do not prevent the Restricted Subsidiaries of the Borrower from making distributions to the Borrower sufficient to pay amounts payable in respect of its Indebtedness due during the 12 month period immediately following the Incurrence of such Indebtedness;
(ix) arising in connection with the Incurrence of Indebtedness by a Permitted Joint Venture after the Effective Date, provided, that such encumbrances or restrictions are required in order to effect such financing and are not more restrictive on the ability of the applicable Permitted Joint Venture to make the payments, distributions, loans, advances or transfers referred to above than necessarily and customarily accepted; or
(x) customary provisions in joint venture agreements and other similar agreementsagreements entered into in the ordinary course of business consistent with past practice. Nothing contained in this Section 5.09 shall prevent the Borrower or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by Section 5.10 or (2) restricting the extent such encumbrance sale or restriction relates to the activities other disposition of property or assets of the Company Borrower or a any of its Restricted Subsidiary Subsidiaries that secure Indebtedness provided such restriction is a party to such joint venture and if (as determined in good faith otherwise permitted by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSection 5.10.
Appears in 1 contract
Samples: Loan Agreement (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company The Issuer shall not, and shall not permit any Restricted Subsidiary to, to create or otherwise cause or permit suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary toSubsidiary:
(i1) to pay dividends (in cash or otherwise) or make any other distributions on any in respect of its Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary;
(ii) Subsidiary Guarantor or pay any Indebtedness Debt or other obligation owed to the Company Issuer or any other Restricted SubsidiarySubsidiary Guarantor (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and any subordination of any obligation to any other obligation shall not be deemed a restriction on the ability to pay any Debt or other obligation);
(iii2) to make loans or advances to the Company Issuer or any other Subsidiary Guarantor (it being understood that the subordination of loans and advances to the Issuer or any of its Restricted SubsidiarySubsidiaries to other Debt Incurred by the Issuer or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(iv3) sell, lease or otherwise to transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basisGuarantor.
(b) The provisions of Notwithstanding Section 4.08(a) do not apply 4.8(a), the Issuer may, and may permit any Restricted Subsidiary to, suffer to exist any encumbrances such encumbrance or restrictionsrestriction:
(i1) existing in agreements as pursuant to any agreement in effect on the Original Issue Date, or in Date (including the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, Senior Secured Credit Agreement);
(2) pursuant to this Indenture, the Security Documents, Notes and the Subsidiary Guarantees;
(3) pursuant to an agreement relating to any Debt or under any Permitted Pari Passu Secured Indebtedness Lien Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Company Issue Date or any Restricted Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of carrying on any of the foregoing agreementsbusinesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred in connection with, or anticipation of, becoming a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; provided provided, that the encumbrances and restrictions Incurrence of such Debt was permitted under Section 4.9 or the Incurrence of such Lien was permitted under Section 4.12, as applicable;
(4) pursuant to an agreement effecting a refinancing of Debt Incurred pursuant to an agreement referred to in any clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such extension, refinancing, renewal refinancing agreement relating to such encumbrance or replacementrestriction are not materially more restrictive, taken as a whole, are no more restrictive than the provisions contained in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are agreement being extended, refinanced, renewed or replacedin each case as determined in good faith by the Issuer;
(ii5) existing under or by reason in the case of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision restriction described in clause (iv3) of Section 4.08(a4.7(a), contained in any agreement (including a Finance Lease Obligation) if they arisesecuring Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or are agreed toproperty subject to such security agreement; provided that any such encumbrance or restriction is released to the extent the underlying Lien is released or the related Debt repaid;
(6) in the case of a restriction described in clause (3) of Section 4.7(a), consisting of customary non-assignment provisions entered into in the ordinary course of business andin leases, that (i) subleases, licenses and other contracts to the extent such provisions restrict in a customary manner the subletting, assignment transfer or transfer subletting of any property or asset that is subject to a such lease or licensesublease or the assignment of rights under any such lease, (ii) exist by virtue of any Lien onsublease, license or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiaryother contract;
(v7) with respect to a Restricted Subsidiary and Subsidiary, imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary Subsidiary; provided that such restriction terminates if such transaction is permitted by Section 4.05, Section 4.09 and Section 4.13closed or abandoned;
(vi8) in bona fide contracts for the sale of any property or assets;
(9) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Issuer determines that any such encumbrance or restriction either (i) will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment than those in effect on the Notes and, Issue Date with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect Restricted Subsidiary pursuant to the Holders than those encumbrances or restrictions that are then agreements in effect and that are being extendedon the Issue Date or those contained in the Indenture or the Senior Secured Credit Agreement, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (each case as determined in good faith by the Board of Directors)Directors or an officer of the Issuer;
(i10) restrictions applicable to Foreign Subsidiaries;
(11) customary provisions in joint venture agreements, and customary provisions limiting the encumbrances disposition or restrictions are customary for distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Permitted Investment), which limitation is applicable only to the joint venture or similar agreement the assets that are the subject of that type such agreements, as applicable;
(12) if such encumbrance or restriction is the result of applicable laws or regulations;
(13) restrictions and encumbrances created in connection with any Receivables Facility;
(ii14) arise in connection with Liens on cash or other deposits permitted under Section 4.12 or are restrictions on cash or other deposits imposed by customers under contracts entered into in the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability ordinary course of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guaranteebusiness; or
(viii15) existing with respect to any Unrestricted Subsidiary or if such restriction is the property or assets result of such Unrestricted Debt of a Restricted Subsidiary that is designated not a Subsidiary Guarantor which is permitted by Section 4.9 (as a long as such restriction applies solely to such Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSubsidiaries).
Appears in 1 contract
Samples: Indenture (Acushnet Holdings Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in paragraph (b) below, the Company shall IRSA will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such to IRSA or any other Restricted Subsidiary owned by the Company or pay any Indebtedness owed to IRSA or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii2) make loans or advances to the Company IRSA or any other Restricted Subsidiary; or
(iv3) sell, lease or transfer any of its property or assets to the Company IRSA or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(aParagraph (a) do above will not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of:
(1) applicable law, law rule, regulation or order;
(iii2) with respect to any Person this Indenture or the property Securities of any series;
(3) the terms of any agreements governing Indebtedness in existence on the Issue Date, and any amendment, modification, restatement, renewal, restructuring, replacement or assets refinancing thereof;
(4) customary non-assignment provisions of such Person acquired by the Company any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, existing at or any customary restriction on the time ability of such acquisition and a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(5) any instrument governing Acquired Indebtedness not incurred Incurred in connection with, or in anticipation or contemplation thereofof, the relevant acquisition, merger or consolidation, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property properties or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted SubsidiaryPerson so acquired;
(v6) restrictions with respect to a Restricted Subsidiary and of IRSA imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary Restricted Subsidiary; provided that is designated as a such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(7) the terms of any agreements governing Indebtedness of Alto Xxxxxxx X.X. permitted to be Incurred subsequent to the Issue Date in accordance with the terms of covenant described above under the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereofcaption Section 3.16; provided that (i) such agreements permit Alto Xxxxxxx X.X. to pay annual dividends or make other distributions in respect of its Capital Stock (so long as (a) no default or event of default has occurred and is continuing under the encumbrances relevant agreement, or would occur immediately after giving effect to such dividend or distribution and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.(b)
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than a Receivables Subsidiary) to:
(i1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted SubsidiarySubsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii2) make loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary (iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted SubsidiarySubsidiary shall not be deemed a restriction on the ability to make loans or advances); and or
(iii3) the provisions contained in documentation governing repay any Indebtedness requiring transactions between or among owed to the Company and or any other Restricted Subsidiary or between transfer any of its property or among assets to the Company or any other Restricted Subsidiary to be on fair and reasonable terms (it being understood that such transfers shall not include any type of transfer described in clauses (1) or on an arm’s length basis(2) above or in this clause (3)).
(b) The foregoing provisions of Section 4.08(a) do shall not apply to restrict any encumbrances or restrictions:
(i1) existing on the Closing Date in the Credit Agreement, the Indenture, the Existing Notes Indenture or any other agreements as in effect on the Original Issue Closing Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing such agreements; provided that the encumbrances and restrictions in any such extensionextensions, refinancingrefinancings, renewal renewals or replacement, replacements taken as a whole, whole are no more restrictive less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii2) existing under or by reason of applicable law, law or any applicable rule, regulation or order;
(iii3) that are customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized Lease Obligations that impose restrictions on the property purchased or leased;
(5) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, acquired and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensionextensions, refinancingrefinancings, renewal renewals or replacement, replacements taken as a whole, whole are no more restrictive less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv6) in the case of clause (3) of the first paragraph of this Section 4.08:
(A) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or lease, license, conveyance or contract or similar property or asset,
(iiB) exist existing by virtue of any Lien ontransfer of, or agreement to transfer, option or similar right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture the Indenture,
(C) arising or (iii) do agreed to in the normal course of business, not relate 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 in any manner material to the Company or any Restricted Subsidiary; or
(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;
(v7) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13Subsidiary;
(vi) with respect 8) relating to a Subsidiary Guarantor and contained in the terms of any Restricted Subsidiary and imposed Indebtedness or any agreement pursuant to an agreement that has been entered into for which such Indebtedness was issued if:
(A) the Incurrence encumbrance or restriction is not materially more disadvantageous to the Holders of Indebtedness permitted described under clause the Notes than is customary in comparable financings (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, Company in good faith); and
(B) the encumbrances Company determines that any such encumbrance or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to restriction will not materially and adversely affect the Company’s ability of the Company to make required payment principal or interest payments on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedNotes;
(vii9) existing in arising from customary provisions in joint venture agreements and other similar agreements;
(10) existing in the documentation governing any Permitted Securitization or Permitted Factoring Program; or;
(11) contained in any agreement governing Indebtedness permitted under clause (8) of the second paragraph of part (a) of Section 4.09. Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.12 or (2) restricting the extent such encumbrance sale or restriction relates to the activities other disposition of property or assets of the Company or a any of its Restricted Subsidiary Subsidiaries that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability secure Indebtedness of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under of its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make distributions on or in respect of Capital Stock; );
(ii2) make loans or advances, or to pay any Indebtedness or other obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made by a Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness Incurred or obligations incurred or owed by the Company or such other Restricted Subsidiary, or of Indebtedness or any other obligation owed by any Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or obligations incurred or owed such Restricted Subsidiary shall not be deemed a restriction on the ability of a Restricted Subsidiary to make loans or advances or to pay such Indebtedness or such other obligation);
(3) guarantee any Indebtedness or any other obligation of the Company or any Restricted Subsidiary; and or
(iii4) the provisions contained in documentation governing Indebtedness requiring transactions between transfer any of its property or among assets to the Company and or any other Restricted Subsidiary Subsidiary, except for such encumbrances or between restrictions existing under or among any Restricted Subsidiary by reason of:
(1) With respect to be on fair and reasonable terms or on an arm’s length basis.clauses (1)-(4) above:
(a) applicable law;
(b) The provisions any encumbrance or restriction pursuant to or by reason of Section 4.08(aan agreement in effect at the Issue Date;
(c) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, this Supplemental Indenture or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted other indentures governing Pari Passu Secured Indebtedness; provided, however, that the provisions relating to such encumbrances or restriction contained in any such other indenture are no less favorable to the Holders in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrances or restrictions contained in this Supplemental Indenture or (ii) instruments governing other Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the foregoing agreementsIssue Date in accordance with Section 4.06; provided that the encumbrances provisions relating to such encumbrance or restriction contained in such instruments are not materially less favorable to the Company and restrictions in any such extension, refinancing, renewal or replacement, its Restricted Subsidiaries taken as a whole, are no more restrictive as determined by the Company in any material respect to good faith, than the Holders than those encumbrances or restrictions that are then provisions contained in the Senior Credit Facility and in this Supplemental Indenture as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(iid) existing under the Senior Credit Facility;
(e) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Industry Investments”;
(f) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(g) any encumbrance or restriction pursuant to or by reason of an instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable lawto such Restricted Subsidiary, rule, regulation or order;
(iii) with respect to any Person or the property properties or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at other than the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any the Person other than such Person so acquired;
(h) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or the property disposition of Capital Stock or assets of such Person so acquiredRestricted Subsidiary to be consummated in accordance with the terms of this Supplemental Indenture solely in respect of the assets or Capital Stock to be sold or disposed of;
(i) any instrument governing a Permitted Lien, to the extent and any extensions, refinancings, renewals only to the extent such instrument restricts the transfer or replacements thereof; provided that the other disposition of assets subject to such Permitted Lien;
(j) encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, contracts entered into in the ordinary course of business andbusiness, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vk) with respect an agreement governing Refinancing Indebtedness incurred to a Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the sale referred to in clause (b), (c), (d) or disposition of all (g) above or substantially all of the Capital Stock ofthis clause (k), or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to contained in any Restricted Subsidiary and imposed pursuant amendment to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viiib), (xivc), (xvi), (xvii), (xviii), (xixd) or (xxg) of Section 4.05(b) ifabove or this clause (k); provided, however, that the provisions relating to such encumbrance or restriction contained in any such agreement governing Refinancing Indebtedness or amended agreement are, taken as a whole, no less favorable to the Holders in any material respect as determined by the Board of DirectorsDirectors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the applicable agreement referred to in such clause (b), (c), (d) or (g) or this clause (k);
(l) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Supplemental Indenture;
(m) the encumbrances issuance of Preferred Stock by a Restricted Subsidiary or restrictions are (i) customary for the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such types Preferred Stock is permitted pursuant to Section 4.06 and the terms of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock); and
(n) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the Company to make required payment on the Notes ordinary course of business; and,
(2) with respect to Indebtedness permitted under clauses clause (viii), (xvi), (xvii), (xviii), (xix4) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;above only:
(viia) existing any encumbrance or restriction contained in customary provisions in joint venture agreements and other similar security agreements, mortgages, purchase money agreements, Capital Lease Obligations or similar instruments securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction relates restricts the transfer of the property subject to such security agreements, mortgages, purchase money agreements or similar instruments;
(b) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(c) provisions with respect to the activities disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements, unitization agreements and other agreements that are customary in the Crude Oil and Natural Gas Business and entered into in the ordinary course of business; and
(d) provisions limiting the disposition or distribution of assets or property in, or transfer of Capital Stock of, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into (i) in the ordinary course of business, consistent with past practice or (ii) with the approval of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Company’s Board of Directors)
(i) , which limitations are applicable only to the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would notassets, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets Capital Stock that are the subject of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedagreements.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make distributions on or in respect of Capital Stock; );
(ii2) make loans or advances, or to pay any Indebtedness or other obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made by a Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness Incurred or obligations incurred or owed by the Company or such other Restricted Subsidiary, or of Indebtedness or any other obligation owed by any Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or obligations incurred or owed by such Restricted Subsidiary shall not be deemed a restriction on the ability of a Restricted Subsidiary to make loans or advances or to pay such Indebtedness or such other obligation);
(3) guarantee any Indebtedness or any other obligation of the Company or any Restricted Subsidiary; and or
(iii4) the provisions contained in documentation governing Indebtedness requiring transactions between transfer any of its property or among assets to the Company and or any other Restricted Subsidiary Subsidiary, except for such encumbrances or between restrictions existing under or among any Restricted Subsidiary by reason of:
(1) With respect to be on fair and reasonable terms clauses (1)-(4) above:
(a) applicable law, rule, regulation, order, approval, license, permit or on an arm’s length basis.similar restriction;
(b) The provisions any encumbrance or restriction pursuant to or by reason of Section 4.08(aan agreement in effect at the Issue Date;
(c) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, this Indenture or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted other indentures governing Pari Passu Secured Indebtedness; provided, however, that the provisions relating to such encumbrances or restriction contained in any such other indenture are no less favorable to the Holders in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions relating to such encumbrances or restrictions contained in this Indenture or (ii) instruments governing other Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the foregoing agreementsIssue Date in accordance with Section 4.06; provided that the encumbrances provisions relating to such encumbrance or restriction contained in such instruments are not materially less favorable to the Company and restrictions in any such extension, refinancing, renewal or replacement, its Restricted Subsidiaries taken as a whole, are no more restrictive as determined by the Company in any material respect to good faith, than the Holders than those encumbrances or restrictions that are then provisions contained in the Senior Credit Facility and in this Indenture as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(iid) existing under or by reason of applicable law, rule, regulation or orderthe Senior Credit Facility;
(iiie) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Industry Investments”;
(f) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(g) any encumbrance or restriction with respect to any Person at the time it becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary, which encumbrance or restriction is not applicable to such Restricted Subsidiary, or the property properties or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at other than the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any the Person other than such Person so acquired;
(h) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or the property disposition of Capital Stock or assets of such Person so acquiredRestricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the assets or Capital Stock to be sold or disposed of;
(i) any instrument governing a Permitted Lien, to the extent and any extensions, refinancings, renewals only to the extent such instrument restricts the transfer or replacements thereof; provided that the other disposition of assets subject to such Lien;
(j) encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, contracts entered into in the ordinary course of business andbusiness, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vk) with respect an agreement governing Refinancing Indebtedness incurred to a Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the sale referred to in clause (b), (c), (d) or disposition of all (g) above or substantially all of the Capital Stock ofthis clause (k), or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to contained in any Restricted Subsidiary and imposed pursuant amendment to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viiib), (xivc), (xvi), (xvii), (xviii), (xixd) or (xxg) of Section 4.05(b) ifabove or this clause (k); provided, as determined by the Board of Directorshowever, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in any such extension, refinancing, renewal agreement governing Refinancing Indebtedness or replacementamended agreement are, taken as a whole, are no more restrictive less favorable to the Holders in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the Holders than those encumbrances applicable agreement referred to in such clause (b), (c), (d) or restrictions that are then in effect and that are being extended, refinanced, renewed (g) above or replacedthis clause (k);
(viil) existing Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Indenture;
(m) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in customary accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.06 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock); and
(n) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(o) any encumbrance or restriction contained in the terms of any Indebtedness permitted to be incurred pursuant to Section 4.06 if (x) either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) any such encumbrance or restriction will not affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Company, and (y) the encumbrance or restriction is not materially more restrictive, taken as a whole, than the provisions contained in joint venture agreements and other similar the Senior Credit Facility or this Indenture;
(p) any Permitted Investment; and
(2) with respect to clause (4) above only:
(a) any encumbrance or restriction contained in security agreements, mortgages, purchase money agreements, Finance Lease Obligations or similar instruments securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction relates restricts the transfer of the property subject to such security agreements, mortgages, purchase money agreements or similar instruments;
(b) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(c) provisions with respect to the activities disposition or distribution of assets of the Company or a Restricted Subsidiary that is a party to such property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements, unitization agreements and if other agreements that are customary in the Crude Oil and Natural Gas Business and entered into in the ordinary course of business; and
(as determined in good faith by d) provisions limiting the Board disposition or distribution of Directors)
assets or property in, or transfer of Capital Stock of, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into (i) in the encumbrances ordinary course of business, consistent with past practice or restrictions are customary for a joint venture or similar agreement of that type and (ii) with the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability approval of the Company Company, which limitations are applicable only to make the required payments on the Notesassets, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets Capital Stock that are the subject of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedagreements.
Appears in 1 contract
Samples: Indenture (Bonanza Creek Energy Operating Company, LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a1) Except as provided in paragraph (b) below, the Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Company or any other Restricted Subsidiary;
(ii) Subsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iiib) make loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(ivc) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b2) The provisions of Section 4.08(aParagraph (1) do above will not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of:
(a) applicable law, law or any applicable rule, regulation or order;
(iiib) the Indenture and the Supplemental Indenture;
(c) the Bank Credit Facilities as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(d) customary non-assignment provisions of any Person license, sub-license or the property other contract and customary provisions restricting assignment or assets subletting in any lease governing a leasehold interest of such Person acquired by the Company or any Restricted Subsidiary, existing at or any customary restriction on the time ability of such acquisition a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under the Indenture and the Supplemental Indenture;
(e) any instrument governing Acquired Indebtedness not incurred Incurred in connection with, or in anticipation or contemplation thereofof, the relevant acquisition, merger or consolidation, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property properties or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted SubsidiaryPerson so acquired;
(vf) restrictions with respect to a Restricted Subsidiary and of the Company imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, of such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13being sold;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (ig) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment restrictions imposed on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) transfer of Section 4.05(b), any extensions, refinancings, renewals copyrighted or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedpatented materials;
(viih) existing Indebtedness of a Foreign Restricted Subsidiary Incurred under Section 3.1(2) (c) of or of a Joint Venture or TMD Entity Incurred under Section 3.1(2)(c)(iv), in customary provisions in joint venture agreements and other similar agreements, each case to the extent that any such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a Indebtedness of such type and, in the judgment of the Company, necessary to obtain appropriate financing for such Foreign Restricted Subsidiary or Domestic Restricted Subsidiary;
(i) customary restrictions contained in joint venture agreements, shareholder agreements or similar constituent documents related to Investments in Persons that are not Wholly Owned Subsidiaries of the Company;
(j) any agreement of relating to Indebtedness outstanding on the Issue Date as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that type and (ii) the any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions would not, at than those in existence on the time agreed to, be expected to materially Issue Date;
(k) purchase money obligations for property and adversely affect (x) Capitalized Lease Obligations that impose restrictions on the ability property purchased or leased of the Company nature of described in paragraph (1)(c) above;
(l) any Indebtedness secured by a Lien that was otherwise permitted to make be incurred under the required payments provisions of Section 4.06 and 4.07 of the Indenture that limits the right of the debtor to dispose of the assets subject to such Liens;
(m) restrictions on cash or other deposits or net worth requirements imposed by customers under contracts or arrangements entered into in the Notesordinary course of business;
(n) Indebtedness Incurred under Section 3.1(2)(j) or other restrictions or other contractual requirements of a Securitization Subsidiary in connection with a Permitted Receivables Financing; and
(o) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (b), (c), (e) or (yg) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guaranteeof this paragraph (2); or
(viii) existing provided, that such Refinancing agreement is not materially more restrictive with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances contained in the agreement referred to in such clause (b), (c), (e) or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced(j).
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make distributions on or in respect of Capital Stock; );
(ii2) make loans or advances, or to pay any Indebtedness or other obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made by a Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness Incurred or obligations incurred or owed by the Company or such other Restricted Subsidiary, or of Indebtedness or any other obligation owed by any Restricted Subsidiary to the Company or any Restricted Subsidiary to other Indebtedness or obligations incurred or owed by such Restricted Subsidiary shall not be deemed a restriction on the ability of a Restricted Subsidiary to make loans or advances or to pay such Indebtedness or such other obligation);
(3) guarantee any Indebtedness or any other obligation of the Company or any Restricted Subsidiary; and or
(iii4) the provisions contained in documentation governing Indebtedness requiring transactions between transfer any of its property or among assets to the Company and or any other Restricted Subsidiary Subsidiary, except for such encumbrances or between restrictions existing under or among any Restricted Subsidiary by reason of:
(1) With respect to be on fair and reasonable terms clauses (1)-(4) above:
(a) applicable law, rule, regulation, order, approval, license, permit or on an arm’s length basis.similar restriction;
(b) The provisions any encumbrance or restriction pursuant to or by reason of Section 4.08(aan agreement in effect at the Issue Date;
(c) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, this Indenture or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted other indentures governing Pari Passu Secured Indebtedness; provided, however, that the provisions relating to such encumbrances or restriction contained in any such other indenture are no less favorable to the Holders in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions relating to such encumbrances or restrictions contained in this Indenture or (ii) instruments governing other Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of its Restricted Subsidiaries permitted to be incurred pursuant to an agreement entered into subsequent to the foregoing agreementsIssue Date in accordance with Section 4.06; provided that the encumbrances provisions relating to such encumbrance or restriction contained in such instruments are not materially less favorable to the Company and restrictions in any such extension, refinancing, renewal or replacement, its Restricted Subsidiaries taken as a whole, are no more restrictive as determined by the Company in any material respect to good faith, than the Holders than those encumbrances or restrictions that are then provisions contained in the Senior Credit Facility and in this Indenture as in effect and that are being extended, refinanced, renewed or replacedon the Issue Date;
(iid) existing under or by reason of applicable law, rule, regulation or orderthe Senior Credit Facility;
(iiie) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Industry Investments”;
(f) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary;
(g) any encumbrance or restriction with respect to any Person at the time it becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary, which encumbrance or restriction is not applicable to such Restricted Subsidiary, or the property properties or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at other than the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any the Person other than such Person so acquired;
(h) customary restrictions with respect to a Restricted Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or the property disposition of Capital Stock or assets of such Person so acquiredRestricted Subsidiary to be consummated in accordance with the terms of this Indenture solely in respect of the assets or Capital Stock to be sold or disposed of;
(i) any instrument governing a Permitted Lien, to the extent and any extensions, refinancings, renewals only to the extent such instrument restricts the transfer or replacements thereof; provided that the other disposition of assets subject to such Lien;
(j) encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, contracts entered into in the ordinary course of business andbusiness, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vk) with respect an agreement governing Refinancing Indebtedness incurred to a Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the sale referred to in clause (b), (c), (d) or disposition of all (g) above or substantially all of the Capital Stock ofthis clause (k), or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to contained in any Restricted Subsidiary and imposed pursuant amendment to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viiib), (xivc), (xvi), (xvii), (xviii), (xixd) or (xxg) of Section 4.05(b) ifabove or this clause (k); provided, as determined by the Board of Directorshowever, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in any such extension, refinancing, renewal agreement governing Refinancing Indebtedness or replacementamended agreement are, taken as a whole, are no more restrictive less favorable to the Holders in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions relating to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates contained in the applicable agreement referred to the activities or assets of the Company or a Restricted Subsidiary that is a party to in such joint venture and if clause (as determined in good faith by the Board of Directorsb)
, (ic), (d) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (yg) any Subsidiary Guarantor above or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
this clause (viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.k);
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:
(i) : pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company Stock; make loans or any other Restricted Subsidiary;
(ii) advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to Subsidiary of the Company or any other Restricted SubsidiaryCompany; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary GuarantorCompany, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any each case except for such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of: applicable law; the Notes or this Indenture; customary non-assignment provisions of any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Company; any instrument governing Acquired Indebtedness, rulewhich encumbrance or restriction is not applicable to any Person, regulation or order;
(iii) the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; the Credit Agreement or an agreement governing other Senior Debt or Guarantor Senior Debt permitted to be incurred under this Indenture; provided that, with respect to any Person agreement governing such other Senior Debt or Guarantor Senior Debt, the property provisions relating to such encumbrance or assets of such Person acquired by restriction are no less favorable to the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability Directors of the Company to make required payment in its reasonable and good faith judgment than the provisions contained in the Credit Agreement as in effect on the Notes and, with respect Issue Date; restrictions on the transfer of assets subject to Indebtedness any Lien permitted under this Indenture imposed by the holder of such Lien; restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale; restrictions imposed by agreements governing Indebtedness of a Foreign Restricted Subsidiary incurred pursuant to clauses (viii), (xvi), (xvii), (xviii), (xix14) and (xx19) of Section 4.05(b), the definition of "Permitted Indebtedness;" restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; any extensions, refinancings, renewals Purchase Money Note or replacements other Indebtedness or other contractual requirements of any of the foregoing agreementsa Securitization Entity in connection with a Qualified Securitization Transaction; provided that the encumbrances and such restrictions in any apply only to such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in Securitization Entity; customary provisions in joint venture agreements and other similar agreements, agreements (in each case relating solely to the extent respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business; and an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b) and (d) through (l) above; provided, however, that the provisions relating to such encumbrance or restriction relates contained in any such agreements are no less favorable to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (in any material respect as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability Directors of the Company in their reasonable and good faith judgment than the provisions relating to make the required payments on the Notes, such encumbrance or restriction contained in agreements referred to in such clauses (yb) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
and (viiid) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedthrough (l) above.
Appears in 1 contract
Samples: Indenture (Manitowoc Co Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted SubsidiaryStock;
(ii2) make loans or advances, or to pay any Indebtedness or other obligation owed owed, to the Company or any other Restricted Subsidiary;
(iii3) make loans guarantee any Indebtedness or advances to any other obligation of the Company or any other Restricted Subsidiary; or
(iv4) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute Subsidiary (each such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notesa "Payment Restriction"), the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any except for such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of of:
(a) applicable law, rule, regulation or order;
(iiib) with respect to any Person or the property or assets of such Person acquired by the Company this Indenture or any Restricted Subsidiaryother indentures governing Pari Passu Indebtedness; provided, existing at however, that the time of provisions relating to such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions restriction contained in any such extension, refinancing, renewal or replacement, taken as a whole, other indenture are no more restrictive less favorable to the Holders in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to the Holders than those such encumbrances or restrictions that are then contained in effect and that are being extended, refinanced, renewed or replacedthe Indenture;
(ivc) that otherwise would be prohibited by the provision described in clause Senior Credit Facility;
(ivd) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, non-assignment or transfer provisions of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company contract or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to any Indebtedness, and that do not, individually or in the aggregate, detract from the value lease governing a leasehold interest of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(ve) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to such Restricted Subsidiary, or the properties or assets of such Restricted Subsidiary, other than the Person or the properties or assets of the Person so acquired;
(f) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(g) customary restrictions with respect to a Restricted Subsidiary and imposed of the Company 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, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary to be consummated in accordance with the terms of the Indenture at solely in respect of the time assets or Capital Stock to be sold or disposed of;
(h) any instrument governing a Permitted Lien, to the extent and only to the extent such instrument restricts the transfer or other disposition of assets subject to such designation and not Permitted Lien; or
(i) an agreement governing Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in contemplation of such designationclause (b), which encumbrances (c), (e) or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries(f) above; provided, and any extensionshowever, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in any such extension, refinancing, renewal or replacement, taken as a whole, Refinancing Indebtedness are no more restrictive less favorable to the Holders in any material respect as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the Holders than those encumbrances applicable agreement referred to in such clause (b), (c), (e) or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced(f).
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company Cedar Fair shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company distribution to Cedar Fair or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided Subsidiaries on its Capital Stock (it being understood that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock Equity Interests in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock; ) or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to Cedar Fair or any of its Subsidiaries;
(iib) make loans or advances to Cedar Fair or any of its Subsidiaries (it being understood that the subordination of loans or advances made to the Company Cedar Fair or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company Cedar Fair or any Restricted SubsidiarySubsidiary shall not be deemed a restriction on the ability to make loans or advances); and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.or
(bc) The provisions transfer any of Section 4.08(a) do not apply its properties or assets to Cedar Fair or any of its Restricted Subsidiaries; except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(i) Existing Indebtedness and existing in agreements as in effect on the Original Issue DateDate (including, or in the Noteswithout limitation, the Subsidiary Guarantees, the JV Subsidiary GuaranteesCredit Agreement, this Indenture, the Notes, the Guarantees, the First Lien Intercreditor Agreement and the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedAgreements);
(ii) existing under or by reason of applicable law, rule, regulation rule or orderregulation;
(iii) with respect any instrument governing Acquired Debt and any other agreement or instrument of an acquired Person or any of its Subsidiaries as in effect at the time of acquisition (except to the extent such Indebtedness or other agreement or instrument was incurred 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 such Person the Person, so acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedits Subsidiaries;
(iv) Refinancing Indebtedness; provided that otherwise would be prohibited the restrictions contained in the agreements governing such Refinancing Indebtedness are no more restrictive than those contained in the agreements governing the Indebtedness being refinanced;
(v) this Indenture and the Notes or by Cedar Fair’s other Indebtedness ranking pari passu with the provision described Notes; provided that except as set forth in clause (ivvi) of Section 4.08(abelow such restrictions are no more restrictive taken as a whole than those imposed by this Indenture and the Notes;
(vi) if they ariseany Credit Facility; provided that the restrictions therein are not (i) materially more restrictive than the agreements governing such Indebtedness as in effect on the Issue Date or (ii) will not affect the Issuers’ ability to make principal or interest payments on the Notes (as determined by Cedar Fair in good faith);
(vii) customary non-assignment provisions in contracts, or are agreed toleases, sub-leases and licenses entered into in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiarybusiness;
(vviii) with respect to a Restricted Subsidiary and imposed pursuant to an any agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, such a Restricted Subsidiary or any of its assets in compliance with the terms of this Indenture that is permitted restricts distributions by Section 4.05, Section 4.09 and Section 4.13that Restricted Subsidiary pending such sale or other disposition;
(viix) with respect to any Restricted Subsidiary provisions limiting the disposition or distribution of assets or property (including cash) in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and imposed pursuant to an agreement that has been other similar agreements (including agreements entered into for the Incurrence of Indebtedness permitted described under clause (viiiin connection with a Restricted Investment), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, agreements applicable to the extent Equity Interests or Indebtedness of such joint venture, which limitation is applicable only to the assets that are the subject of such agreements;
(x) Permitted Liens;
(xi) any agreement for the sale of any Subsidiary or its assets that restricts distributions by that Subsidiary (or sale of such Subsidiary’s Equity Interests) pending its sale; provided that during the entire period in which such encumbrance or restriction relates is effective, such sale (together with any other sales pending) would be permitted under the terms of this Indenture;
(xii) secured Indebtedness otherwise permitted to be incurred by this Indenture that limits the activities or assets right of the Company debtor to dispose of the assets securing such Indebtedness;
(xiii) Purchase Money Indebtedness that imposes restrictions of the type described in clause (c) above on the property so acquired;
(xiv) provisions in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(xv) restrictions in Investments in Persons that are Restricted Subsidiaries;
(xvi) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xv) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in Cedar Fair’s good faith judgment, not materially more restrictive as a whole with respect to such encumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(xvii) Indebtedness or other agreements including, without limitation, agreements described in clause (ix) of this paragraph, of any Restricted Subsidiary that is not an Issuer or a party to Guarantor that impose restrictions solely on such joint venture Restricted Subsidiary and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary GuaranteeSubsidiaries; or
(viiixviii) existing with respect to any Unrestricted Subsidiary restriction on cash or other deposits or net worth imposed by customers, licensors or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the property or assets ordinary course of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedbusiness.
Appears in 1 contract
Samples: Indenture (Cedar Fair L P)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions distribution on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary or make any service fee or related payments under a VIE Contract to the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: it being understood that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, Indenture or under any Permitted Pari Passu Secured Indebtedness Guarantee of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and or any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that that, the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of under Section 4.08(a4.08(a)(iv) if they arise, or are agreed to, in the ordinary course of business andbusiness, that and (iA) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (iiB) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iiiC) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described of the type under clause (viiiSection 4.05(b)(iv), (xivSection 4.05(b)(xi), (xviSection 4.05(b)(xiii), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.,
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on any or in respect of its Capital Stock of such to the Company or any other Restricted Subsidiary owned by or pay any Indebtedness or other obligations owed to the Company or any other Restricted Subsidiary;
(ii) pay make loans or advances to, or Guarantee any Indebtedness or other obligation owed to the Company obligations of, or make any other Restricted Subsidiary;
(iii) make loans or advances to Investment in, the Company or any other Restricted Subsidiary; or
(iviii) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(aClause (a) do will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iiiii) with respect to any Person or this Indenture, the property or assets of such Person acquired by Notes, the Company Subsidiary Guarantees or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets Pari Passu Subsidiary Guarantee of any Person other than such Person or the property or assets of such Person so acquired, Subsidiary Guarantor and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements refinancings thereof; provided that the encumbrances and restrictions in any such extensionamendment, refinancingrestatement, renewal renewal, replacement or replacement, taken as a whole, are no refinancing is not materially more restrictive in any material with respect to the Holders than those such encumbrances or restrictions that are then than those in effect existence on the Issue Date;
(iii) any restrictions imposed on the payment of dividends or other distributions on ordinary shares of LDK Silicon & Chemical in connection with the issuance and that are being extended, refinanced, renewed or replacedsale of the Series A redeemable convertible preferred shares of LDK Silicon & Chemical contemplated by the Polysilicon Subscription Agreement;
(iv) that otherwise would be prohibited by the provision described in clause (iv) customary non-assignment provisions of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a any contract and customary manner the subletting, provisions restricting assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 subletting in any manner material to the Company or lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary and of the Company imposed pursuant to an a binding agreement that which has been entered into for the sale or disposition of all Capital Stock or substantially all assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, of such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13being sold;
(vivii) with respect customary restrictions imposed on the transfer of copyrighted or patented materials; or
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred or any Restricted Subsidiary and imposed extension or renewal thereof pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under referred to in clause (viii)v) above; provided, (xiv), (xvi), (xvii), (xviii), (xix) that such Refinancing agreement or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances extension or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacementthereof, taken as a whole, are no is not materially more restrictive in any material with respect to the Holders than those such encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then contained in effect and that are being extended, refinanced, renewed or replacedthe agreement referred to in such clause (v).
Appears in 1 contract
Samples: Indenture (LDK Solar Co., Ltd.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except Until the Loan has been fully and indefeasibly paid as provided belowand when due, the Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary toto do any one of the following:
(i) pay dividends or make any other distributions on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The foregoing provisions of Section 4.08(a) do shall not apply to restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Agreement or any other agreements as or instruments in effect on the Original Issue Closing Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing such agreements; provided that the encumbrances and restrictions in any such extensionextensions, refinancingrefinancings, renewal renewals or replacement, taken as a whole, replacements are no more restrictive less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued (or, in the case of Acquired Preferred Stock, terms of such Acquired Preferred Stock) if the encumbrance or restriction applies only in the event of a default with respect to a financial covenant contained in such Indebtedness or agreement (or, in the case of Acquired Preferred Stock, upon the default in the payment of dividends upon such Acquired Preferred Stock) and such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company) and the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes;
(iii) existing under or by reason of applicable law, rule, regulation or order;
(iiiiv) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ivv) that otherwise would be prohibited by in the provision described in case of clause (iv) of sub-Section 4.08(a6.2(a), (A) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is, or is subject to to, a lease or lease, purchase mortgage obligation, license, conveyance or contract or similar property or asset, (iiB) exist existing by virtue of any Lien ontransfer of, or agreement to transfer, option or similar right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture Agreement or (iiiC) do arising or agreed to in the ordinary course of business, not relate 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 Subsidiaries in any manner material to the Company or any Restricted Subsidiary;; or
(vvi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;Subsidiary.
(vic) with respect to Nothing contained in this Section 6.2 shall prevent the Company or any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are from (i) customary for such types of agreements and creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 6.5 or (ii) would not, at restricting the time agreed to, be expected to materially and adversely affect the ability sale or other disposition of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities property or assets of the Company or a any of its Restricted Subsidiary Subsidiaries that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability secure Indebtedness of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under of its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSubsidiaries.
Appears in 1 contract
Samples: Investment and Loan Agreement (Startec Global Communications Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i) to pay dividends (in cash or otherwise) or make any other distributions on any in respect of its Capital Stock of such owned by Parent or any other Restricted Subsidiary owned by the Company or pay any Debt or other obligation owed to Parent or any other Restricted Subsidiary;
, (ii) pay to make loans or advances to Parent or any Indebtedness other Restricted Subsidiary or other obligation owed (iii) to the Company transfer any of its Property to Parent or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply Notwithstanding the foregoing limitation, Parent may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to any encumbrances or restrictions:
exist (i) existing in agreements as any encumbrance or restriction pursuant to any agreement in effect on the Original Issue Date, (ii) any customary (as conclusively determined in good faith by the Chief Financial Officer of Parent) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in the Notesan agreement or instrument governing or relating to Debt contained in any Qualified Credit Facility or Purchase Money Debt; provided, the Subsidiary Guaranteeshowever, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the such encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect permit the distribution of funds to the Holders than those encumbrances Issuer in an amount sufficient for the Issuer to make the timely payment of interest, premium (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or restrictions that are then in effect and that are being extendedrepurchase thereof, refinanced, renewed including upon the occurrence of designated events or replaced;
(ii) existing under circumstances or by reason virtue of applicable lawacceleration upon an event of default, ruleor by way of redemption or retirement at the option of the holder of the Debt, regulation including pursuant to offers to purchase) according to the terms of this Indenture and the Securities and other Debt that is solely an obligation of the Issuer, but provided further, however, that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or order;
(iii) with respect to sale of all or any Person or substantial part of the property or assets of such Person acquired by the Company Parent or any Restricted Subsidiary, existing at the time of such acquisition customary (as so determined) restrictions on transactions with affiliates and not incurred in contemplation thereofcustomary (as so determined) subordination provisions governing Debt owed to Parent or any Restricted Subsidiary, (iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such Person or the property or assets of such Person so acquired, (iv) any encumbrance or restriction pursuant to an agreement relating to any Debt of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 1011 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries, (v) any extensionsencumbrance or restriction pursuant to an agreement to effecting a refinancing of Debt Incurred pursuant to an agreement referred to in clause (i), refinancings(ii) or (iii) of this paragraph (b); provided, renewals or replacements thereof; provided however, that the encumbrances and restrictions provisions contained in any such extension, refinancing, renewal agreement relating to such encumbrance or replacement, taken as a whole, restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof, (vi) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Debt of Parent or a Restricted Subsidiary otherwise permitted under this Indenture, but only to the Holders than those encumbrances or extent such restrictions that are then restrict the transfer of the Property subject to such security agreement, (vii) in effect and that are being extendedthe case of clause (iii) of paragraph (a) above, refinanced, renewed or replaced;
customary provisions (ivA) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset Property that is subject to a lease or lease, license, (ii) exist by virtue of any Lien on, or agreement to transfer, option conveyance or similar right with respect contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to any IndebtednessDebt, and that do not, individually or in the aggregate, detract from the value of property or assets Property of the Company Parent or any Restricted Subsidiary in any manner material to the Company Parent or any Restricted Subsidiary;
, (vviii) any encumbrance or restriction with respect to a Restricted Subsidiary and imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, Property of such Restricted Subsidiary Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is permitted by Section 4.05abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (iiix) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates pursuant to this Indenture and the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedSecurities.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries of the Company to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on any its Capital Stock of such Restricted Subsidiary owned by the Company Stock, or any other Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other of its Restricted Subsidiary;
Subsidiaries, (iiiii) make loans or advances to any Investment in the Company or any other of its Restricted Subsidiary; or
Subsidiaries, (iviii) sell, lease or transfer any of its property properties or assets to the Company or any other of its Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance Subsidiaries or restriction: (iiv) the priority of guarantee any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantorits Restricted Subsidiaries, and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any except for such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of (A) applicable law, rule, regulation or order;
(iiiB) with respect any instrument governing Acquired Indebtedness permitted to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not be incurred in contemplation thereof, under Section 4.9 which encumbrances or restrictions are not applicable to any Person or the property properties or assets of any Person Person, other than such the Person so acquired or its Subsidiaries, or the property or assets of such the Person so acquiredacquired or its Subsidiaries, and (C) any extensionsrestrictions existing under agreements in effect on the Initial Issuance Date, refinancings(D) any restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary, renewals provided, that such disposition is permitted pursuant to Section 4.10, (E) any agreement governing Indebtedness otherwise permitted under the Indenture restricting the sale or replacements other disposition of property securing such Indebtedness if such agreement does not expressly restrict the ability of a Restricted Subsidiary to pay dividends or to make distributions, loans or advances, (F) the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; , provided that issuance of such preferred stock is permitted pursuant to Section 4.9 and the encumbrances terms of such preferred stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock), (G) this Indenture, (H) the Credit Facility and restrictions other Senior Indebtedness, (I) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and the like, (J) in any such extensionthe case of clause (iii) above, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
agreements (iv1) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, pledging, assignment or transfer of any property or asset that is subject to a lease or lease, license, conveyance or contract or similar property or asset, or (ii2) exist existing by virtue of any Lien ontransfer of, or agreement to transfer, option or similar right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to Indenture, including, without limitation, transfer restrictions on any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property specific properties or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v) with respect that are subject to a Restricted Subsidiary and imposed pursuant to an sale 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, such Restricted Subsidiary that is otherwise permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.pursuant
Appears in 1 contract
Samples: Indenture (Cinemark Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiary Subsid- iaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:to:
(i) pay dividends or make any other distributions on any its Capital Stock of such Restricted Subsidiary owned by to the Company Parent Guarantor or any Restricted Subsidiary, or with respect to any other interest or participa- tion in, or measured by, its profits, or pay any Indebtedness owed to the Parent Guarantor or any Restricted Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Parent Guarantor or any other Restricted SubsidiarySubsidi- ary; or
(iviii) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any other Restricted Subsidiary; , provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (ix) the priority of any Preferred Stock preferred stock in receiving dividends div- idends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; common stock and (iiy) the subordination of (including the application of any standstill period to) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred Indebted- ness incurred by the Company Parent Guarantor or any Restricted Subsidiary; and (iii) the provisions contained , in documentation governing Indebtedness requiring transactions between each case, shall not be deemed to constitute such an encumbrance or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.restriction.
(b) The provisions restrictions of Section 4.08(aparagraph (a) do above shall not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i) existing agreements governing Indebtedness and Credit Facilities in agreements effect on the Is- xxx Date, including the Parent Guarantor Group Facilities Agreement, the Intercreditor Agree- ment, the Security Documents, the Existing Notes (and the indentures governing the Existing Notes), the Schaeffler Group Senior Facilities Agreement, the Schaeffler Group Security Docu- ments and the Schaeffler Group Security Pooling and Intercreditor Agreement, in each case as in effect on the Original Issue Date, or in the Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any extensionsamendments, refinancingsrestatements, renewals modifications, renewals, supple- ments, refundings, replacements or replacements refinancings of any of the foregoing those agreements; provided that the encumbrances and restrictions in any such extensionamend- ments, refinancingrestatements, renewal modifications, renewals, supplements, refundings, replacements or replacementrefi- nancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date;
(ii) this Indenture, the Notes, the Note Guarantee, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents;
(iii) any encumbrance or restriction arising pursuant to an agreement or instru- ment relating to any Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.06 if the encumbrances and restrictions contained in any such agreement or instru- ment taken as a whole are not materially less favorable to the Holders than (x) the encumbrances and restrictions contained in the Parent Guarantor Group Facilities Agreement, the Intercreditor Agreement, the Security Documents, the Existing Notes (and the indentures governing the Exist- ing Notes), the Schaeffler Group Senior Facilities Agreement, the Schaeffler Group Security Documents and the Schaeffler Group Security Pooling and Intercreditor Agreement, in each case, as in effect on the Issue Date (as determined in good faith by the Parent Guarantor) or (y) is cus- tomary in comparable financings (as determined in good faith by the Parent Guarantor), provided that the Parent Guarantor determines in good faith that such restrictions will not materially ad- versely impact the ability of the Issuer and the Parent Guarantor to make required principal and interest payments on the Notes and the Note Guarantee;
(iv) applicable law, rule, regulation or order or the terms of any license, authori- zation, concession or permit;
(v) any instrument governing Indebtedness or Capital Stock of a Person ac- quired by Xxxxxxxxxx XX or any of its Restricted Subsidiaries as in effect at the time of such ac- quisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or as- sets 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;
(vi) customary non-assignment and similar provisions in contracts, leases and li- censes entered into in the ordinary course of business;
(vii) 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 (iii) of paragraph (a) above;
(viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more re- strictive, taken as a whole, than those contained in the agreements governing the Indebtedness be- ing refinanced;
(x) Liens permitted to be incurred under the provisions of Section 4.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(xi) customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements in the ordinary course of business (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(xii) restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts en- tered into in the ordinary course of business;
(xiii) encumbrances or restrictions with respect to any Qualified Securitization Fi- nancing;
(xiv) restrictions on the real property securing Indebtedness under any mortgage financing or mortgage refinancing permitted to be incurred subsequent to the Issue Date pursuant to Section 4.06; and
(xv) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xiv), or in this clause (xv); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to the Holders than those encumbrances or restrictions that are then in effect and that are being agreement so extended, refinancedrenewed, renewed refinanced or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.replaced.
Appears in 1 contract
Samples: Indenture
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiaryinterest or participation in, or measured by, its profits;
(ii) pay any Indebtedness or other obligation Debt owed to the Company Parent Guarantor or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary; or
(iv) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (ix) the priority of any Preferred Stock preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; common stock and (iiy) the subordination of (including the application of any standstill period to) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred Debt incurred by the Company Parent Guarantor or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between , shall not be deemed to constitute such an encumbrance or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basisrestriction.
(b) The provisions of Section 4.08(athe covenant described in paragraph (a) do above will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(i) existing in agreements as in effect on the Original Issue Date, or in the Notes (including Additional Notes, the Subsidiary Guarantees, the JV Subsidiary Guarantees), this Indenture, the Security Documents, Senior Credit Facilities and any security documents related thereto or under any Permitted Pari Passu Secured Indebtedness of by other indentures or agreements governing other Debt that the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Parent Guarantor or any JV Subsidiary Guarantor, and any extensions, refinancings, renewals or replacements of any of its Restricted Subsidiaries incur ranking equally with the foregoing agreementsNotes; provided that the encumbrances and or restrictions in any imposed by such extension, refinancing, renewal other indentures or replacementagreements are not materially more restrictive, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition dividend and not incurred in contemplation thereof, which encumbrances or other payment restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited imposed by this Indenture or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of DirectorsDirectors or a member of senior management of the Parent Guarantor);
(iii) any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to Section 4.08, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that such encumbrances or restrictions are not materially less favorable, taken as a whole, to the holders of the Notes than is customary for in comparable financings (as determined in good faith by the board of directors or a joint venture member of senior management of the Parent Guarantor);
(iii) any agreement in effect on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the board of directors or a member of senior management of the Parent Guarantor);
(iv) customary non-assignment and similar provisions in contracts, leases and licenses entered into in the ordinary course of business;
(v) any agreement or other instrument of that type and a Person (ii) including its Subsidiaries), acquired by the encumbrances Parent Guarantor or restrictions would not, any Restricted Subsidiary in effect at the time agreed toof such acquisition (but not created in contemplation thereof), be expected which encumbrance or restriction is not applicable to materially and adversely affect (x) the ability of the Company to make the required payments on the Notesany Person, or (y) the properties or assets of any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary Person, other than the Person, or the property or assets of such Unrestricted Subsidiary that is designated as the Person, so acquired (including its Subsidiaries);
(vi) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary in accordance with that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(vii) Liens permitted to be incurred under Section 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) applicable law, rule, regulation or order or the terms of any governmental licenses, authorizations, concessions, franchises or permits;
(ix) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into the Indenture at ordinary course of business;
(x) customary limitations on the time distribution or disposition of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with an Investment), which limitations are applicable only to the assets that are the subject of such designation agreements;
(xi) purchase money obligations and not incurred mortgage financings for property acquired in contemplation the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iv) of paragraph (a) of this Section 4.07;
(xii) any Qualified Securitization Financing; and
(xiii) any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xii) or in this clause (xiii); provided that the terms and conditions of any such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacementmaterially less favorable, taken as a whole, are no more restrictive in any material respect to the Holders holders of the Notes than those encumbrances under or restrictions that are then in effect and that are being pursuant to the agreement so extended, refinancedrenewed, renewed amended, modified, restated, supplemented, refunded, refinanced or replacedreplaced (as determined in good faith by the Board of Directors or a member of senior management of the Parent Guarantor).
Appears in 1 contract
Samples: Indenture (Elster Group SE)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided below, the Company shall Garden State will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of Garden State to (i) pay dividends or make any other distributions on any its Capital Stock of such or pay any Debt owed to Garden State or a Restricted Subsidiary owned by the Company or any other Restricted Subsidiary;
of Garden State, (ii) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Garden State or any other a Restricted Subsidiary; or
Subsidiary of Garden State or (iviii) sell, lease or transfer any of its property properties or assets to the Company or any other Restricted Subsidiary; provided that Garden State, except for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
restrictions existing under or by reason of (iA) existing in agreements as applicable law or provisions in effect on the Original Issue Date, (B) the Indenture, (C) agreements existing on the Issue Date, (D) the Garden State Credit Facility, the Senior Subordinated Secured Notes or in the Notes, (E) customary non-assignment provisions of any lease governing a leasehold interest of Garden State or a Restricted Subsidiary of Garden State (F) any instrument governing or evidencing Acquired Debt of a Person at the Subsidiary Guaranteestime of such acquisition, the JV Subsidiary Guarantees, this Indenture, the Security Documentswhich encumbrance or restriction is not applicable to any Person, or under the properties or assets of any Permitted Pari Passu Secured Indebtedness Person, other than the Person so acquired, PROVIDED that such Debt, and such encumbrance or restriction, is not incurred in connection with, or in contemplation of, such acquisition, (G) any encumbrances or restrictions contained in any Debt governing any refinancings of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of any Subsidiary Guarantor or any JV Subsidiary GuarantorDebt described in clause (C), and any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions contained in any such extensionrefinancing agreement or amendment, refinancing, renewal supplement or replacement, taken as a whole, other modification are no more restrictive in any material respect not materially less favorable to the Holders Noteholders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions contained in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.08(a) if they arise, or are agreed to, in the ordinary course of business and, that (i) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license, (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture agreements or (iii) do not relate 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 in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (iH) customary for restrictions on such types of loans, advances or transfers contained in agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the extent such encumbrance or restriction relates to the activities or assets of the Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Subsidiary or its subsidiaries or the property or assets of such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedgoverning Permitted Investments.
Appears in 1 contract
