Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary: (1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary (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); (2) to make loans or advances to the Company or any other Restricted Subsidiary; or (3) otherwise to transfer any of its property or assets to the Company or any other Restricted Subsidiary. (b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction: (1) pursuant to any agreement in effect on the Issue Date (including the Revolving Credit Facility); (2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees; (3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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, that the Incurrence of such Debt was permitted under Section 4.9; (4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended; (5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract; (7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers; (8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned; (9) in bona fide contracts for the sale of any property or assets; (10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company; (11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or (12) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 2 contracts
Samples: Indenture (Group 1 Automotive Inc), Indenture (Group 1 Automotive Inc)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuers shall not, and shall not permit any Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Restricted SubsidiarySubsidiary to:
(1) to pay dividends (in cash or otherwise) or make any other distributions in respect permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to an Issuer or any other Restricted Subsidiary;
(3) make loans or advances to an Issuer or any other Restricted Subsidiary; or
(4) transfer its property or assets to an Issuer or any other Restricted Subsidiary.
(b) The foregoing provisions shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to, this Indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements 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 not materially more restrictive, taken as a whole, than those contained in customary comparable financings and shall not impair in any material respect the Issuers’ and Subsidiary Guarantors’ ability to make payments on the Notes and Note Guarantees thereof when due;
(3) existing with respect to any Person (including Indebtedness or Capital Stock owned of such Person) or the property or assets of such Person acquired by an Issuer or any Restricted Subsidiary (including by merger or consolidation), existing at the Company 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 amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or are not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition;
(4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of clause (a)(4) of this Section 4.8:
(A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(C) existing under, by reason of or with respect to (i) purchase money obligations for property acquired in the ordinary course of business or (ii) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of 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 was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; 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;
(7) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or pay any Debt disposition of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other obligation owed disposition; or
(8) encumbrances or restrictions existing under or by reason of applicable law, rule, regulation, order, decree, approval, license, permit or other accreditation of, or agreement with, any governmental or regulatory authorities with respect to the Company assets located in or under their jurisdiction.
(c) Nothing contained in this Section 4.8 shall prevent an Issuer or any other Restricted Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 4.8, (it being understood that 1) the priority of any Preferred Stock in receiving dividends, distributions dividends or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock 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 to other Indebtedness incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances to the Company or any other Restricted Subsidiary; or
(3) otherwise to transfer any of its property or assets to the Company or any other Restricted Subsidiaryadvances.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Credit Facility);
(2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(12) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 2 contracts
Samples: Indenture (American Finance Trust, Inc), Indenture (Global Net Lease, Inc.)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted SubsidiarySubsidiary to:
(1a) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by the Company Equity Interests;
(b) make loans or any other Restricted Subsidiary advances or pay any Debt Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary (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);
(2) to make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
(3c) otherwise to transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction; except for:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Credit Facility)encumbrances or restrictions existing under or by reason of applicable law, rule, regulation or order;
(2) pursuant to encumbrances or restrictions existing under this Indenture, the Notes and the Subsidiary Note Guarantees;
(3) non-assignment provisions of any contract or any lease entered into in the ordinary course of business;
(4) encumbrances or restrictions existing under agreements existing on the date of this Indenture (including, without limitation, the Credit Facility) as in effect on that date;
(5) restrictions relating to any Lien permitted under this Indenture imposed by the holder of such Lien;
(6) restrictions imposed under any agreement to sell such assets permitted under this Indenture to any Person pending the closing of such sale, including, but not limited to, with respect to a Restricted Subsidiary, restrictions imposed pursuant to an agreement relating to that has been entered into for the sale or disposition of all or substantially all of the Equity Interests of, or property and assets of, such Restricted Subsidiary;
(7) any Debt Incurred by or Capital Stock of a Person instrument governing Acquired Indebtedness (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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 Indebtedness incurred in connection with, or anticipation in contemplation of the acquisition of, becoming or a Restricted Subsidiarymerger with, the Person being acquired), 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; provided, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an 8) any other agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, governing Indebtedness entered into after the Issue Date that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction contains encumbrances and restrictions that are not materially more restrictive, restrictive taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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, whole with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date Date;
(9) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of (i) ownership interests in such partnership, limited liability company, joint venture or those contained similar Person or (ii) other assets that are the subject of such agreements or documents;
(10) in this Indenture the case of clause (c) above, encumbrances or restrictions:
(A) that restrict in a customary manner the Revolving Credit Facilitysubletting, in each case as determined in good faith assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(B) existing by the Board virtue of Directors any transfer of, agreement to transfer, option or an Officer right with respect to, or Lien on, any property or assets of the CompanyIssuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary, or
(D) arising under Purchase Money Obligations for property acquired in the ordinary course of business;
(11) encumbrances or restrictions applicable to contained in (i) Indebtedness of Foreign Subsidiaries permitted to be incurred under this Indenture or (ii) Indebtedness incurred by a Guarantor after the Issue Date in compliance with the Coverage Ratio Exception; provided, that the encumbrances and restrictions in any such agreements taken as a whole are no more restrictive in any material respect than those contained in the agreements described in clause (4) of this paragraph; provided further that any such encumbrances or instruments governing Debt restrictions are ordinary and customary with respect to the type of Foreign SubsidiariesIndebtedness being incurred under the relevant circumstances and do not, in the good faith judgment of the Board of Directors of the Issuer, materially impair the Issuer’s ability to make payment on the Notes when due; orand
(12) if any encumbrances or restrictions imposed by any amendment, refinancing, extension, renewal or replacement of or with respect to the agreements, contracts, instruments or obligations referred to in clauses (1) through (11) above; provided that such encumbrance amendments, refinancings, extensions, renewals or restriction is replacements are, in the result good faith judgment of applicable laws the Issuer’s Board of Directors, no more materially restrictive taken as a whole with respect to such encumbrances and restrictions than those prior to such amendment, refinancing, extension, renewal or regulationsreplacement. Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.15 hereof or (2) restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 2 contracts
Samples: Indenture (Matrix Geophysical, Inc.), Indenture (Seitel Inc)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted SubsidiarySubsidiary to:
(1a) to pay dividends (in cash or otherwise) or make any other distributions in respect of on its Capital Stock owned by the Company to Parent or any other Restricted Subsidiary or pay any Debt or other obligation Indebtedness owed to the Company or any other Restricted Subsidiary (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);
(2) to make loans or advances to the Company Parent or any other Restricted Subsidiary; or,
(3b) otherwise to transfer make any of its property loans or assets to the Company advances to, or guarantee any Indebtedness of, Parent or any other Restricted Subsidiary., or
(bc) Notwithstanding the restrictions in Section 4.8(a)Transfer any of its assets to Parent or any other Restricted Subsidiary, the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restrictionexcept:
(1) any encumbrance or restriction (A) pursuant to any an agreement in effect at or entered into on the Issue Date (including this Indenture and the Credit Facilities), as such encumbrance or restriction is in effect on the Issue Date and (including B) in the Revolving Credit FacilityFacilities having the effect of restricting Issuer or any Restricted Subsidiary from taking any of the actions described in clauses (a), (b) or (c) above with respect to, Parent or any intermediate holding company between Parent and Issuer;
(2) pursuant restrictions on the Transfer of assets subject to this Indenture, any Lien permitted under the Notes and Indenture imposed by the Subsidiary Guaranteesholder of such Lien;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing restrictions on the Issue Date or Transfer of assets imposed under any Restricted Subsidiary carrying on agreement to sell such assets permitted under this Indenture pending the closing of such sale;
(4) any of the businesses 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 Subsidiaryinstrument 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 assets of the Person so acquired; provided, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) customary provisions in the case of a restriction described in clause (3) of Section 4.8(a)partnership agreements, contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenturelimited liability company organizational governance documents, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions joint venture agreements and other similar agreements entered into in the ordinary course of business in leases and other contracts to the extent such provisions that restrict the transfer or subletting Transfer of any such lease ownership interests in or the assignment payment of rights under any dividends or distributions from such contractpartnership, limited liability company, joint venture or similar Person;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(12) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary:
(1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company Issuer or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary (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 StockStock 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);
(2) to make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
(3) otherwise to transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company Issuer may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Senior Secured Credit FacilityFacilities);
(2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facilityfinance lease) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) 8) in bona fide contracts for the sale of any property or assets;
(109) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines Issuers determine that any such encumbrance or restriction either (i) will not materially affect the Company’s Issuers’ 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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Senior Secured Credit FacilityFacilities, in each case as determined in good faith by the Board of Directors or an Officer of the CompanyIssuer;
(1110) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(1211) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Samples: Indenture (Bloomin' Brands, Inc.)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary:
(1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock 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);
(2) to make loans or advances to the Company or any other Restricted Subsidiary; or
(3) otherwise to transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Credit Facility);
(2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease capital lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(12) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Samples: Indenture (Group 1 Automotive Inc)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted SubsidiarySubsidiary to:
(1a) to pay dividends (in cash or otherwise) or make any other distributions in respect of on its Capital Stock owned by the Company to Parent or any other Restricted Subsidiary or pay any Debt or other obligation Indebtedness owed to the Company or any other Restricted Subsidiary (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);
(2) to make loans or advances to the Company Parent or any other Restricted Subsidiary; or,
(3b) otherwise to transfer make any of its property loans or assets to the Company advances to, or guarantee any Indebtedness of, Parent or any other Restricted Subsidiary., or
(bc) Notwithstanding the restrictions in Section 4.8(a)Transfer any of its assets to Parent or any other Restricted Subsidiary, the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restrictionexcept:
(1) any encumbrance or restriction (A) pursuant to any an agreement in effect at or entered into on the Issue Date (including this Indenture and the Credit Facility), as such encumbrance or restriction is in effect on the Issue Date and (including B) in the Revolving Credit FacilityFacility having the effect of restricting Issuer or any Restricted Subsidiary from taking any of the actions described in clauses (a), (b) or (c) above with respect to, Parent or any intermediate holding company between Parent and Issuer;
(2) pursuant restrictions on the Transfer of assets subject to this Indenture, any Lien permitted under the Notes and Indenture imposed by the Subsidiary Guaranteesholder of such Lien;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing restrictions on the Issue Date or Transfer of assets imposed under any Restricted Subsidiary carrying on agreement to sell such assets permitted under this Indenture pending the closing of such sale;
(4) any of the businesses 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 Subsidiaryinstrument 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 assets of the Person so acquired; provided, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) customary provisions in the case of a restriction described in clause (3) of Section 4.8(a)partnership agreements, contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenturelimited liability company organizational governance documents, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions joint venture agreements and other similar agreements entered into in the ordinary course of business in leases and other contracts to the extent such provisions that restrict the transfer or subletting Transfer of any such lease ownership interests in or the assignment payment of rights under any dividends or distributions from such contractpartnership, limited liability company, joint venture or similar Person;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(12) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Samples: Indenture (Terra Industries Inc)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary:
(1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company Issuer or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary (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 StockStock 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);
(2) to make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
(3) otherwise to transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company Issuer may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Amended Credit FacilityAgreement);
(2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facilityfinance lease) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, ; provided that such restriction terminates if such transaction is closed or abandoned;
(9) 8) in bona fide contracts for the sale of any property or assets;
(109) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company Issuer determines that any such encumbrance or restriction either (i) will not materially affect the CompanyIssuer’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Amended Credit FacilityAgreement, in each case as determined in good faith by the Board of Directors or an Officer of the CompanyIssuer;
(1110) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(1211) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary:
(1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company Issuer or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company Issuer or any other Restricted Subsidiary (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 StockStock 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);
(2) to make loans or advances to the Company Issuer or any other Restricted SubsidiarySubsidiary (it being understood that the subordination of loans and advances to the Issuer or any of its Restricted Subsidiaries 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
(3) otherwise to transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company Issuer may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Senior Secured Credit FacilityAgreement and the Existing Notes Indenture);
(2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended, in each case as determined in good faith by the Board of Directors or an Officer of the Issuer;
(5) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facilityObligation) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) 8) in bona fide contracts for the sale of any property or assets;
(109) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company Issuer determines that any such encumbrance or restriction either (i) will not materially affect the CompanyIssuer’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Senior Secured Credit FacilityAgreement or the Existing Notes Indenture, in each case as determined in good faith by the Board of Directors or an Officer of the CompanyIssuer;
(10) restrictions applicable to Foreign Subsidiaries;
(11) restrictions 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 (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Issuer’s Board of Directors, which limitation is applicable only to Foreign Subsidiaries in agreements or instruments governing Debt the assets that are the subject of Foreign Subsidiariessuch agreements; or
(12) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary:
48 (1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary (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);
; (2) to make loans or advances to the Company or any other Restricted Subsidiary; or
or (3) otherwise to transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
: (1) pursuant to any agreement in effect on the Issue Date (including the Revolving Senior Secured Credit FacilityFacilities);
; (2) pursuant to this Indenture, the Notes and the Subsidiary Note Guarantees;
; (3) pursuant to an any agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date that has been entered into, or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) issued, prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred entered into, or issued, 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a4.8(a)(3), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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;
(65) in the case of a restriction described in clause (3) of Section 4.8(a4.8(a)(3), consisting of customary non-assignment provisions restrictions in leases, subleases, licenses or asset sale agreements and other similar contracts otherwise permitted under this Indenture so long as such restrictions relate only to the assets subject thereto; (6) any restrictions on cash or other deposits imposed by agreements entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
business; (7) which is contained customary provisions in a franchise shareholders agreements, joint venture agreements, organizational documents or similar binding agreements relating to any JV Entity or non-Wholly Owned Restricted Subsidiary and other agreement entered into in similar agreements applicable to JV Entities and non- Wholly Owned Restricted Subsidiaries permitted under Section 4.7 and applicable solely to such JV Entity or non-Wholly Owned Restricted Subsidiary and the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
Capital Stock issued thereby; (8) in bona fide contracts for the sale of any property or assets, including customary restrictions with respect to a Restricted Subsidiary, Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, ; provided that such restriction terminates if such transaction is closed or abandoned;
; (9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction customary net worth provisions contained in real property leases or contracts with customers or suppliers entered into by Restricted Subsidiaries of the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if Company; provided that the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as has determined in good faith by the Board of Directors or an Officer of the Company;
(11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(12) if that such encumbrance or restriction is the result of applicable laws or regulations.net worth provisions could not reasonably be
Appears in 1 contract
Samples: Indenture (Atkore Inc.)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted SubsidiarySubsidiary to:
(1a) to pay dividends (in cash or otherwise) or make any other distributions in respect of on its Capital Stock owned by the Company to Parent or any other Restricted Subsidiary or pay any Debt or other obligation Indebtedness owed to the Company or any other Restricted Subsidiary (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);
(2) to make loans or advances to the Company Parent or any other Restricted Subsidiary; or,
(3b) otherwise to transfer make any of its property loans or assets to the Company advances to, or guarantee any Indebtedness of, Parent or any other Restricted Subsidiary., or
(bc) Notwithstanding the restrictions in Section 4.8(a)Transfer any of its assets to Parent or any other Restricted Subsidiary, the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restrictionexcept:
(1) any encumbrance or restriction (A) pursuant to any an agreement in effect at or entered into on the Issue Date (including this Indenture and the Credit Facility), as such encumbrance or restriction is in effect on the Issue Date and (including B) in the Revolving Credit FacilityFacility having the effect of restricting Issuer or any Restricted Subsidiary from taking any of the actions described in clauses (a), (b) or (c) above with respect to, Parent or any intermediate holding company between Parent and Issuer;
(2) pursuant restrictions on the Transfer of assets subject to this Indenture, any Lien permitted under the Notes and Indenture imposed by the Subsidiary Guaranteesholder of such Lien;
(3) pursuant to an agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing restrictions on the Issue Date or Transfer of assets imposed under any Restricted Subsidiary carrying on agreement to sell such assets permitted under this Indenture pending the closing of such sale;
(4) any of the businesses 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 Subsidiaryinstrument 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 assets of the Person so acquired; provided, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) customary provisions in the case of a restriction described in clause (3) of Section 4.8(a)partnership agreements, contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenturelimited liability company organizational governance documents, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the Transfer of ownership interests in such partnership, limited liability company, joint venture or similar Person;
(6) Purchase Money Indebtedness and Capital Lease Obligations incurred pursuant to clause (8) of the definition of "Permitted Indebtedness" that impose restrictions of the nature described in clause (c) above on the assets acquired;
(7) any encumbrances or restrictions imposed by any amendments or Refinancings of the contracts, instruments or obligations referred to in clause (1), (4) or (6) above; provided that such amendments or Refinancings are, in the good faith judgment of the Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or Refinancing;
(8) covenants to maintain net worth, total assets or liquidity and similar financial responsibility covenants under contracts with customers or suppliers in the ordinary course of business;
(9) any such encumbrance or restriction consisting of customary provisions in leases and other contracts governing leasehold interests to the extent such provisions restrict the transfer or subletting of any such the lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;leased thereunder; and
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Credit Facility, in each case as determined in good faith imposed by the Board of Directors or an Officer of the Company;
(11) restrictions applicable to Foreign Subsidiaries in agreements or instruments governing Debt of Foreign Subsidiaries; or
(12) if such encumbrance or restriction is the result of applicable laws or regulationslaw.
Appears in 1 contract
Samples: Indenture (Terra Capital Inc)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary:
(1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Company or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary (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);
(2) to make loans or advances to the Company or any other Restricted Subsidiary; or
(3) otherwise to transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Senior Secured Credit Facility and other documents related to the Senior Secured Credit Facility);
(2) pursuant to this Indenture, the Notes and the Subsidiary Note Guarantees;
(3) pursuant to an any agreement relating to any Debt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date that has been entered into, or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) issued, prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred entered into, or issued, 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, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5) in the case of a restriction described in clause (3) of Section 4.8(a4.8(a)(3), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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;
(65) in the case of a restriction described in clause (3) of Section 4.8(a4.8(a)(3), consisting of customary nonrestrictions in leases, subleases, licenses, sub-assignment provisions licenses or asset sale agreements and other similar contracts otherwise permitted under this Indenture so long as such restrictions relate only to the assets subject thereto;
(6) any restrictions on cash or other deposits or net worth imposed by agreements entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contractconsistent with past practice;
(7) which is contained customary provisions in a franchise stockholders agreements, joint venture agreements, organizational documents or similar binding agreements relating to any JV Entity or non-Wholly Owned Restricted Subsidiary and other agreement entered into in similar agreements applicable to JV Entities and non-Wholly Owned Restricted Subsidiaries permitted under Section 4.7 and applicable solely to such JV Entity or non-Wholly Owned Restricted Subsidiary and the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealersCapital Stock issued thereby;
(8) in bona fide contracts for the sale of any property or assets, including customary restrictions with respect to a Restricted Subsidiary, Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, ; provided that such restriction terminates if such transaction is closed or abandoned;
(9) customary net worth provisions contained in bona fide real property leases or contracts for with customers or suppliers entered into by Restricted Subsidiaries of the sale Company, so long as the Company has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of any property or assetsthe Company and its Restricted Subsidiaries to meet their ongoing obligations;
(10) restrictions or conditions upon the transfers of assets encumbered by a Lien permitted under Section 4.12, to the extent such restriction applies only to the property subject to such Lien;
(11) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture or the Revolving Senior Secured Credit Facility, in each case as determined in good faith by the Board of Directors or an Officer of the Company;
(1112) any encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Debt or Capital Stock, and that, individually or in the aggregate, (i) do not detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company and its Restricted Subsidiary, taken as a whole, or (ii) do not materially impair the Company’s ability to make future principal, premium or interest payments on the Notes, in each case under this clause (12), as determined by the Company in good faith;
(13) restrictions applicable or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to Foreign which the Company or any of its Restricted Subsidiaries is a party entered into in agreements the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(14) provisions restricting assignment of any agreement entered into in the ordinary course of business or consistent with past practice;
(15) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.8(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments governing Debt or obligations referred to in clauses (1) through (14) of Foreign Subsidiariesthis Section 4.8; provided that such encumbrances and restrictions contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are, in the good faith judgment of the Company, not materially more restrictive, taken as a whole, than the encumbrances and restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; or
(1216) if such encumbrance or restriction is the result of applicable laws or regulations.
Appears in 1 contract
Samples: Indenture (MasterBrand, Inc.)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted SubsidiarySubsidiary to:
(1a) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by the Company Equity Interests to Holdings or any other of its Restricted Subsidiary Subsidiaries, or pay any Debt or other obligation owed with respect to the Company or any other Restricted Subsidiary interest or participation in, or measured by, its profits (it being understood that the priority of any Preferred Stock in receiving dividends, distributions dividends or liquidating distributions prior to dividends, distributions dividends or liquidating distributions being paid on Capital Common Stock shall not be deemed a restriction on the ability to make distributions on Capital StockEquity Interests);
(2b) make loans or advances, or pay any Indebtedness or other obligation owed, to Holdings or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to Holdings or any Restricted Subsidiary to other Indebtedness or obligations incurred by Holdings or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances to the Company or any other Restricted Subsidiaryadvances); or
(3c) otherwise to transfer any of its property or assets to the Company Holdings or any other Restricted Subsidiary.
Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) Notwithstanding the restrictions above); except for, in Section 4.8(a), the Company may, and may permit any Restricted Subsidiary to, suffer to exist any such encumbrance or restrictioneach case:
(1) pursuant to any agreement in effect encumbrances or restrictions existing under agreements existing on the Issue Date (including including, without limitation, the Revolving Term Loan Credit Facility and the ABL Credit Facility)) as in effect on that date;
(2) pursuant to encumbrances or restrictions existing under this Indenture, the Notes (including any Additional Notes), the Guarantees, the Intercreditor Agreements and the Subsidiary GuaranteesSecurity Documents;
(3) pursuant to an agreement relating to any Debt Incurred by instrument governing Acquired Indebtedness or Capital Stock Equity Interests of a Person (other than a Restricted Subsidiary existing on the Issue Date acquired by or merged with or into Holdings or any of its Restricted Subsidiary carrying on any of the businesses 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 SubsidiarySubsidiaries, 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; provided, that acquired or any Restricted Subsidiary having no assets other than the Incurrence Person or the properties or assets of the Person so acquired (including the Equity Interests of such Debt was permitted under Section 4.9Person) and other de minimis assets;
(4) pursuant any agreement or other instrument of a Person acquired by or merged with or into Holdings or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to an any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property) or any Restricted Subsidiary having no assets other than the Person or the properties or assets of the Person so acquired (including the capital stock of such Person) and other de minimis assets;
(5) customary restrictions and conditions contained in any agreement effecting a relating to the sale, transfer or other disposition of any asset permitted under Section 4.10 pending the consummation of such sale, transfer or other disposition;
(6) any amendment, restatement, modification, renewal, increase, supplement, refunding, replacement, replacement or refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b)4.8; provided, however, that such amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are, in the provisions contained in such renewalgood faith judgment of Holdings, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are not materially more restrictive, taken as a whole, than the provisions encumbrances and restrictions contained in the agreement being renewedprior to such amendment, refundedmodification, replacedrestatement, refinanced renewal, increase, supplement, refunding, replacement or extendedrefinancing;
(57) 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 the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 repaidtheir jurisdiction;
(6) in the case of a restriction described in clause (3) of Section 4.8(a), consisting of customary 8) non-assignment or non-subletting provisions of any contract, license or any lease entered into in the ordinary course of business and customary provisions contained in leases and other contracts agreements related to the extent such provisions restrict the transfer or subletting license of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandonedintellectual property;
(9) in bona fide contracts for the sale of any property or assetsLiens permitted to be incurred under Section 4.12;
(10) restrictions imposed under any encumbrance agreement to sell or restriction contained dispose of Equity Interests or assets, as permitted under this Indenture, to any Person pending the closing of such sale;
(11) customary restrictions on leases, subleases, licenses or Equity Interests or asset sale agreements otherwise permitted hereby as long as such restrictions relate to the Equity Interests and assets subject thereto;
(12) any other agreement governing Indebtedness or other obligation entered into after the Issue Date that either (A) contains encumbrances and restrictions that in the terms good faith judgment of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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) Holdings are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture Indenture, the Notes and the Guarantees or (B) contains encumbrances or restrictions that are customary and do not prohibit (except upon a default or an event of default thereunder) the Revolving Credit Facilitypayment of dividends in an amount sufficient, in each case as determined by Holdings in good faith by faith, to make scheduled payments of cash interest and principal on the Board of Directors or an Officer of the CompanyNotes when due;
(1113) restrictions applicable to Foreign Subsidiaries customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, shareholder agreements and other similar agreements entered into in the ordinary course of business that restrict the disposition or instruments governing Debt distribution of Foreign Subsidiaries; or
(12) if ownership interests in or assets of such encumbrance partnership, limited liability company, joint venture, corporation or restriction is the result of applicable laws or regulations.similar Person;
Appears in 1 contract
Samples: Indenture (Venator Materials PLC)
Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted SubsidiarySubsidiary to:
(1a) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by the Company Equity Interests;
(b) make loans or any other Restricted Subsidiary advances or pay any Debt Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary (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);
(2) to make loans or advances to the Company Issuer or any other Restricted Subsidiary; or
(3c) otherwise to transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
; provided that (bx) Notwithstanding the restrictions priority of any Preferred Stock in Section 4.8(a), receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the Company may, and may permit subordination of (including the application of any standstill requirements to) loans or advances made to the Issuer or any Restricted Subsidiary to, suffer to exist other Indebtedness incurred by the Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction. The provisions of the preceding paragraph will not prohibit:
(1) pursuant to any agreement in effect on the Issue Date (including the Revolving Credit Facility)encumbrances or restrictions existing under or by reason of applicable law, rule, regulation or order;
(2) pursuant to encumbrances or restrictions existing under this Indenture, the Notes and the Subsidiary Note Guarantees;
(3) non-assignment provisions of any contract or any lease entered into in the ordinary course of business;
(4) encumbrances or restrictions existing under agreements existing on the date of this Indenture (including, without limitation, the Credit Facility) as in effect on that date;
(5) restrictions relating to any Lien permitted under this Indenture imposed by the holder of such Lien;
(6) restrictions imposed under any agreement to sell such assets permitted under this Indenture to any Person pending the closing of such sale, including, but not limited to, with respect to a Restricted Subsidiary, restrictions imposed pursuant to an agreement relating to that has been entered into for the sale or disposition of all or substantially all of the Equity Interests of, or property and assets of, such Restricted Subsidiary;
(7) any Debt Incurred by or Capital Stock of a Person instrument governing Acquired Indebtedness (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses 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 Indebtedness incurred in connection with, or anticipation in contemplation of the acquisition of, becoming or a Restricted Subsidiarymerger with, the Person being acquired), 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; provided, that the Incurrence of such Debt was permitted under Section 4.9;
(4) pursuant to an 8) any other agreement effecting a renewal, refunding, replacement, refinancing or extension of Debt Incurred pursuant to an agreement referred to in clause (1) or (3) of this Section 4.8(b); provided, however, governing Indebtedness entered into after the Issue Date that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction contains encumbrances and restrictions that are not materially more restrictive, restrictive taken as a whole, than whole (determined in good faith by the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended;
(5Issuer) in the case of a restriction described in clause (3) of Section 4.8(a), contained in any security agreement (including a Finance Lease or any Floor Plan Debt facility) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the assets or property 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 4.8(a), consisting of customary non-assignment provisions entered into in the ordinary course of business in leases and other contracts to the extent such provisions restrict the transfer or subletting of any such lease or the assignment of rights under any such contract;
(7) which is contained in a franchise or other agreement entered into in the ordinary course of business with an motor vehicle manufacturer and which has terms reasonably customary for such agreements between or among such motor vehicle manufacturer, its dealers and/or the owners of such dealers;
(8) 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 of the Capital Stock or assets of such Restricted Subsidiary, provided that such restriction terminates if such transaction is closed or abandoned;
(9) in bona fide contracts for the sale of any property or assets;
(10) any encumbrance or restriction contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any such encumbrance or restriction either (i) will not materially affect the Company’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 than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date Date;
(9) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of (i) ownership interests in such partnership, limited liability company, joint venture or those contained similar Person or (ii) other assets that are the subject of such agreements or documents;
(10) encumbrances or restrictions:
(A) that restrict in this Indenture a customary manner the subletting, assignment or the Revolving Credit Facilitytransfer of any property or asset that is a lease, in each case as determined in good faith license, conveyance or contract or similar property or asset,
(B) existing by the Board virtue of Directors any transfer of, agreement to transfer, option or an Officer right with respect to, or Lien on, any property or assets of the CompanyIssuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary, or
(D) arising under Purchase Money Indebtedness for property acquired in the ordinary course of business;
(11) encumbrances or restrictions applicable to contained in (i) Indebtedness of Foreign Subsidiaries permitted to be incurred under this Indenture or (ii) Indebtedness incurred by a Guarantor after the Issue Date in compliance with the Ratio Exception; provided, that the encumbrances and restrictions in any such agreements taken as a whole are no more restrictive in any material respect than those contained in the agreements described in clause (4) of this paragraph; provided further that any such encumbrances or instruments governing Debt restrictions are ordinary and customary with respect to the type of Foreign Subsidiaries; orIndebtedness being incurred under the relevant circumstances and do not, in the good faith judgment of the Board of Directors of the Issuer, materially impair the Issuer’s ability to make payment on the Notes when due;
(12) if such any encumbrance or restriction is pursuant to the result Hedging Obligations; and
(13) any encumbrances or restrictions imposed by any amendment, refinancing, extension, renewal or replacement of applicable laws or regulationswith respect to the agreements, contracts, instruments or obligations referred to in clauses (1) through (12) above; provided that such amendments, refinancings, extensions, renewals or replacements are, in the good faith judgment of the Issuer’s Board of Directors, no more materially restrictive taken as a whole with respect to such encumbrances and restrictions than those prior to such amendment, refinancing, extension, renewal or replacement. Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.15 hereof or (2) restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Seitel Inc)
