Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary; (ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or (iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary. (b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of: (i) applicable law, rule, regulation or order; (ii) this Indenture; (iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management; (iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture; (v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries); (vii) customary restrictions imposed on the transfer of copyrighted or patented materials; (viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management; (ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens; (x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired; (xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management; (xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture; (xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and (xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.
Appears in 5 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions to the Company or any Restricted Subsidiary on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
, or (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except in all such cases for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation any agreement or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement instrument in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith and listed on Schedule D attached to this Indenture, (ii) applicable law or regulation (including corporate governance provisions required by applicable law and regulations of the Issuer’s senior management;
National Bank of Poland), (iviii) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, (iv) any agreement or other instrument of a Person acquired by the Company or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (v) any mortgage or other Lien on real property acquired or improved by the Company or any Restricted Subsidiary after the Issue Date that prohibits transfers of the type described in (d) above with respect to such real property, (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding Subsidiary, an agreement which that has been entered into for the sale or disposition of all or substantially all of the Company's Capital Stock in, or substantially all the assets of of, such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed the refinancing of Indebtedness incurred under the agreements listed on the transfer of copyrighted Schedule B attached to this Indenture or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to described in clause (iii) or (v) of this Section 3.15(b); providedabove, that such Refinancing agreement is not materially more restrictive with respect to so long as such encumbrances or restrictions are no less favorable in any material respect to the Company or any Restricted Subsidiary than those contained in the respective agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.in
Appears in 4 contracts
Samples: Indenture (Entertainment Inc), Indenture (Entertainment Inc), Indenture (Entertainment Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this IndentureIndenture or the indenture governing the Other Notes;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that such restrictions (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair constitute financial covenants or similar restrictions that limit the Issuer’s ability to pay dividends or make payments distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the Notes when due as determined in good faith by the Issuer’s senior managementdeclaration or payment of dividends or other distributions; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.
Appears in 4 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this Section 3.15(a3.15(b) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that such restrictions (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair constitute financial covenants or similar restrictions that limit the Issuer’s ability to pay dividends or make payments distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the Notes when due as determined in good faith by the Issuer’s senior managementdeclaration or payment of dividends or other distributions; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.
Appears in 4 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the IssuerCompany’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the IssuerCompany’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the IssuerCompany’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that such restrictions (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the IssuerCompany’s senior management or (B) such Incurrence will not materially impair constitute financial covenants or similar restrictions that limit the Issuer’s ability to pay dividends or make payments distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the Notes when due as determined in good faith by the Issuer’s senior managementdeclaration or payment of dividends or other distributions; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the IssuerCompany’s senior management.
Appears in 3 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(2) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; Subsidiary; or
(iii3) make loans or advances to the Company or any other Restricted
(4) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.08(a) shall will not apply to to:
(1) encumbrances and restrictions imposed by the Notes, this Indenture and the Guarantees;
(2) encumbrances or restrictions existing imposed by Debt permitted to be Incurred under Section 4.09; provided that, such encumbrances or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is restrictions are not materially more restrictive with respect taken as a whole to such encumbrances or restrictions Holders than those is customary in existence on the Issue Date comparable financings (as determined in good faith by the IssuerCompany) and the Company determines that at the time of the Incurrence of such Debt that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s senior managementability to make principal or interest payments on the Notes;
(iv3) customary non-assignment provisions of any contract and customary provisions restricting assignment encumbrances or subletting restrictions contained in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction agreement in effect on the ability Closing Date (other than an agreement described in another clause of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparagraph (b));
(v4) with respect to restrictions or encumbrances referred to Section 4.08(a)(4), encumbrances and restrictions: (i) that restrict in a customary manner the subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Company or any Restricted Subsidiary is a party; and (ii) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi6) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely permitted by Section 4.10 or 4.11 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Company’s Subsidiaries by another Person;
(7) encumbrances or restrictions imposed by applicable law or regulation or by governmental licenses, concessions, franchises or permits;
(8) encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(9) customary limitations on the distribution or disposition of assets or property of a Restricted Subsidiary in joint venture agreements entered into the ordinary course of business and in good faith; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary being sold and, provided further, that:
(and i) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable agreements (as determined in good faith by the Company); and
(ii) the Company determines in good faith that any such encumbrance or restriction will not materially affect the ability of the Company or any Guarantor to make any principal or interest payments on the Notes;
(10) in the case of Capital StockSection 4.08(a)(4), its Subsidiaries)customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business;
(vii11) any encumbrance or restriction arising by reason of customary restrictions imposed on the transfer of copyrighted or patented materialsnon-assignment provisions in agreements;
(viii12) an agreement governing Indebtedness Incurred to Refinance any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the Indebtedness issuedcontracts, assumed instruments or Incurred pursuant to an agreement obligations referred to in clauses (1), (3) and (5) and this clause (iii) or (v12) of this Section 3.15(b4.08(b); provided, provided that such Refinancing agreement is not materially amendments, modifications, restatements, renewals, extension, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no more restrictive (taken as a whole) with respect to such encumbrances or restrictions than those contained in the agreement referred encumbrances or restrictions prior to in such clause (iii) amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or (v) as determined in good faith by the Issuer’s senior managementrefinancing;
(ix13) Liens permitted to be Incurred pursuant restrictions contained in security agreements or mortgages securing Debt of a Restricted Subsidiary to the provisions extent such restrictions restrict the transfer of the covenant described under Section 3.17 that limit the right of any person to transfer the assets property subject to such Liens;security agreements or mortgages; or
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii14) customary provisions in joint venture agreements relating to dividends restricting the transfer of copyrighted or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance patented materials consistent with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementindustry practice.
Appears in 3 contracts
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions to the Issuer or any Restricted Subsidiary on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(aThe provisions in paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes (including Additional Notes), rulethis Indenture, regulation or orderthe indenture for the Super Senior Notes, the Super Senior Notes, the Intercreditor Agreement, the RSA Intercreditor Agreement and the Security Documents related thereto;
(ii) any customary encumbrances or restrictions created under any agreements with respect to Debt of the Issuer or any Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to Section 4.06 hereof, including encumbrances or restrictions imposed by Debt permitted to be incurred under clause (i) of paragraph (b) thereof, or any guarantees thereof in accordance with such Section 4.06; provided that such encumbrances or restrictions are not, taken together with the outstanding Debt of the Issuer and its Restricted Subsidiaries, materially less favorable to the Holders with respect to such dividend and other payment restrictions, taken as a whole, than those contained in the indenture for the Super Senior Notes on the date of this Indenture;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions date of this Indenture (other than those an agreement described in existence on the Issue Date as determined in good faith by the Issuer’s senior managementclause (i) of this paragraph (b));
(iv) with respect to restrictions or encumbrances referred to in Section 4.14(a)(iv) above, encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Issuer’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries and provided that:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable agreements (as determined by the Issuer); and
(B) the Issuer determines that any such encumbrance or restriction will not materially affect the ability of the Issuer or any Guarantor to make any anticipated principal or interest payments on the Notes;
(xi) in the case of Section 4.14(a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;agreements; and
(xiii) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the agreements containing the encumbrances or restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9foregoing clauses (i) through (xii); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 3 contracts
Samples: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD), Indenture (Townfrost LTD)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or allow to become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary toSubsidiary:
(i1) to pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances toStock, or make payments on any Investment inIndebtedness owed, to the Issuer Company or any other Restricted Subsidiary; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions before dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) to make loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(iii3) to transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into agreements existing on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those including the Bank Credit Agreement as in existence effect on the Issue Date as determined in good faith by and this Indenture, the Issuer’s senior managementNotes and the Subsidiary Guarantees;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v2) any instrument governing Acquired Indebtedness not Incurred in connection with, of a Person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any other Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired; provided that such Indebtedness was not incurred in contemplation of such acquisition;
(vi3) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding any agreement which has been entered into for the sale or other disposition of Capital Stock or assets of such a Restricted Subsidiary; provided, Subsidiary that such restrictions apply solely to the Capital Stock or assets of restricts distributions by such Restricted Subsidiary being sold (and limited to restrictions on distributions of such assets in the case of assets (other than Capital Stock, its Subsidiaries)) being sold) pending such sale or other disposition;
(vii4) customary restrictions imposed on the transfer any amendment, restatement, modification, supplement, extension, renewal, refunding, replacement or refinancing of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iiiSection 4.08(b)(1) or (v) of this Section 3.15(b2); provided, provided that such Refinancing agreement is the encumbrances or restrictions contained in the agreements governing the foregoing are not materially more restrictive with respect to such encumbrances or restrictions restrictive, taken as a whole, than those contained in the agreement referred agreements governing such Indebtedness as in effect prior to in such clause (iii) amendment, restatement, modification, supplement, extension, renewal, refunding, replacement or (v) refinancing as determined in good faith by the Issuer’s senior managementCompany;
(ix5) Liens this Indenture, the Notes and the related Subsidiary Guarantees;
(6) cash or other deposits, or net worth requirements or similar requirements, imposed by suppliers, or other deposits by parties under agreements entered into in the ordinary course of the Oil and Gas Business of the types described in the definition of “Permitted Business Investments”;
(7) any applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(8) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Company’s Board of Directors or any of its officers, which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(9) any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred incurred under this Indenture or if such encumbrances or restrictions 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 provisions Issue Date or those contained in this Indenture or the Bank Credit Agreement, in each case as determined in good faith by the Board of Directors or an Officer of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such LiensCompany;
(x10) Purchase Money Indebtedness encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(11) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or customary restrictions in licenses relating to the property covered thereby and entered into in the ordinary course of business;
(12) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(13) with respect to Section 4.08(a)(3), any of the following encumbrances or restrictions:
(i) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations or otherwise permitted under this Indenture that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xiii) restrictions on cash or other deposits imposed by customers under contracts or other arrangements contained in asset sale agreements limiting the transfer of such assets pending the closing of such sale; and
(iii) agreements governing hedging obligations entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness.
Appears in 3 contracts
Samples: Indenture (Comstock Resources Inc), Indenture (Comstock Resources Inc), Indenture (Comstock Resources Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions to the Company or any Restricted Subsidiary on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
, or (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except in all such cases for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation any agreement or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement instrument in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith and listed on Schedule D attached to this Indenture, (ii) applicable law or regulation (including corporate governance provisions required by applicable law and regulations of the Issuer’s senior management;
National Bank of Poland), (iviii) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, (iv) any agreement or other instrument of a Person acquired by the Company or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances any mortgage or restrictions than those contained in the agreement referred to in such clause (iii) other Lien on real property acquired or (v) as determined in good faith improved by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on after the Issue Date as determined in good faith by that prohibits transfers of the Issuer’s senior management.type
Appears in 3 contracts
Samples: Indenture (Entertainment Inc), Indenture (Entertainment Inc), Indenture (Entertainment Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (ii) make loans or advances to, or make any Investment inissue guarantees for the benefit of, the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iii) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
(ia) any New Credit Facility;
(b) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vc) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness not Incurred was incurred in connection with, with or in anticipation or contemplation ofof such acquisition); provided, the relevant acquisitionhowever, merger or consolidation, which that no such 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 acquiredAcquired Person;
(vid) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been customary non-assignment, subletting or net worth provisions in leases or other agreements entered into for the sale or disposition ordinary course of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (business and in the case of Capital Stock, its Subsidiaries)consistent with past practices;
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xe) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above only on the property so acquired;
(xif) restrictions on cash an agreement for the sale or other deposits imposed disposition of assets or the Capital Stock of a Restricted Subsidiary; provided, however, that such restriction or encumbrance is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted by customers under contracts Section 4.16; provided, further, however, that such restriction or other arrangements entered into or agreed encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 180 days after such execution and delivery;
(g) this Indenture, the Notes and the Note Guarantees;
(h) Indebtedness (including Refinancing Indebtedness) permitted to in the ordinary course of business not materially more restrictive than those existing on be incurred subsequent to the Issue Date as determined in good faith by pursuant to Section 4.10; provided, however, that any such restrictions are ordinary and customary with respect to the Issuer’s senior managementtype of Indebtedness being incurred;
(xiii) encumbrances and restrictions imposed by Liens incurred in accordance with Section 4.12;
(j) customary provisions in joint venture agreements relating to dividends or and other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;similar agreements; and
(xiiik) encumbrances and restrictions imposed by amendments, restatements, renewals, replacements or refinancings of the contracts, instruments or obligations referred to in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9clauses (a) through (j) above; provided, provided that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions are, in the good faith judgment of the Company's Board of Directors, no more restrictive, in any material respect, than those contained in such Restricted Subsidiary was subject contracts, instruments or obligations immediately prior to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management such amendment, restatement, renewal, replacement or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementrefinancing.
Appears in 3 contracts
Samples: Indenture (Hawk Brake Inc), Indenture (Logan Metal Stampings Inc), Indenture (Hawk Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, provided that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, provided that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, provided that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this Section 3.15(a3.15(b) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, provided that such restrictions (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair constitute financial covenants or similar restrictions that limit the Issuer’s ability to pay dividends or make payments distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the Notes when due as determined in good faith by the Issuer’s senior managementdeclaration or payment of dividends or other distributions; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.
Appears in 3 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall 10.1 The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(b) pay any Indebtedness Debt owed to the Issuer Company or any other Restricted Subsidiary;
(iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary, provided that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (ii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
10.2 The provisions of paragraph 10.1 above will not apply to:
(a) encumbrances and restrictions imposed by the Senior Secured Notes Documents or the Finance Documents;
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or ordercontained in any agreement in effect on the Closing Date;
(iic) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith imposed by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case Debt permitted to be Incurred under any Credit Facilities or any guarantee thereof in accordance with paragraph 1.2 of this IndentureSchedule 15, provided that in the case of any such encumbrances or restrictions imposed under any Credit Facilities, such encumbrances or restrictions are not materially more restrictive taken as a whole than those imposed by this Agreement as of the Closing Date;
(vd) with respect to restrictions or encumbrances referred to in paragraph 10.1(d) above, encumbrances and restrictions: (i) that restrict in a customary manner the subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Company or any Restricted Subsidiary is a party or (ii) contained in operating leases for real property and restricting the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(e) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person or relating to assets acquired by the Company or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vif) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets permitted by paragraph 6 of such Restricted Subsidiary; provided, that such restrictions apply solely this Schedule with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Company’s Subsidiaries by another Person;
(viig) customary encumbrances or restrictions imposed on the transfer of copyrighted by applicable law or patented materialsregulation or by governmental licenses, concessions, franchises or permits;
(viiih) an agreement governing Indebtedness Incurred to Refinance encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the Indebtedness issued, assumed ordinary course of business;
(i) encumbrances or Incurred pursuant to an agreement referred to restrictions in clause customary provisions in joint venture and similar agreements entered into in good faith; provided that (iiix) the encumbrance or (v) of this Section 3.15(b); provided, that such Refinancing agreement restriction is not materially more restrictive with respect disadvantageous to such encumbrances or restrictions the Finance Parties than those contained is customary in the agreement referred to in such clause comparable agreements (iii) or (v) as determined in good faith by the Issuer’s senior managementCompany) and (y) the Company determines in good faith that any such encumbrance or restriction will not materially affect the ability of the Company or any Guarantor to make any principal or interest payments on the Senior Secured Notes;
(ixj) Liens in the case of paragraph 10.1(d) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business;
(k) any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements;
(l) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in paragraphs (a), (b), (c), (d), (h) or (i) of this paragraph (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Finance Parties taken as a whole than the encumbrances and restrictions contained in such Initial Agreement (as determined in good faith by the Company);
(m) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Debt permitted to be Incurred pursuant to the provisions of paragraph 1 of this Schedule if either (i) the covenant described under Section 3.17 that limit encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the right of any person to transfer Finance Parties than the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired encumbrances and restrictions contained in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause Initial Agreements (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
Company) or (xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (Aii) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to encumbrance or restriction is customary in agreements related to obligations referenced in clause comparable financings (iii) above as determined in good faith by the Issuer’s senior management Company) and either: (x) the Company determines that such encumbrance or (B) such Incurrence restriction will not materially impair affect the IssuerCompany’s ability to make principal or interest payments under on the Senior Secured Notes as and when they come due as determined or (y) such encumbrance or restriction applies only if a default occurs relating to such Debt;
(n) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in paragraph 10.1 or paragraph (m) of this paragraph; provided that such amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the good faith by judgment of the IssuerCompany’s senior managementBoard of Directors, no more restrictive (taken as a whole) with respect to such encumbrances or restrictions in any material respect than those contained in the encumbrances or restrictions prior to such amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or refinancing; andor
(xivo) net worth provisions with respect to restrictions or encumbrances referred to in leases entered into paragraph 10.1(d) above, encumbrances or restrictions existing by the Issuer or reason of any Restricted Subsidiary in the ordinary course Lien permitted under paragraph 5 of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementthis Schedule.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Nord Anglia Education, Inc.), Amendment and Restatement Agreement (Nord Anglia Education, Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, Neither the Issuer shall notParent nor any of the Companies will, and shall the Companies will not cause or permit any of its their respective Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
of any of the Companies to (i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (ii) pay any Indebtedness owed to the Issuer any Credit Party or any other Restricted Subsidiary;
, (iiiii) make loans or advances to, to any Credit Party or make any Investment in, the Issuer Restricted Subsidiary or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer any Credit Party or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to Subsidiary except for such encumbrances or restrictions existing under or by reason ofof any of the following:
(iA) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) the Documents and any encumbrance or restriction pursuant to an other agreement in effect at or entered into on the Issue Date, Purchase Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, provided that any amendmentsuch amendments, restatementmodifications, renewalrestatements, replacement renewals, increases, supplements, refundings, replacements or refinancing is not materially refinancings are no more restrictive restrictive, taken as a whole, with respect to such encumbrances or dividend and other payment restrictions than those contained in existence such agreements as in effect on the Issue Date as determined in good faith by the Issuer’s senior managementPurchase Date;
(B) in the case of clause (iv) above, (1) agreements or instruments that restrict in a customary non-manner the subletting, assignment provisions or transfer of any property or asset that is a lease, license, conveyance or contract and customary provisions restricting assignment or subletting in similar property or asset, (2) any lease governing a leasehold interest transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of any Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) provisions arising or agreed to in the ordinary course of business not relating to Indebtedness that do not, individually or in the aggregate, detract from the value of property or assets of any Company or any of its Restricted Subsidiaries or the ability of the Company or such Restricted Subsidiary, as the case may be, to use such property or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lienassets, in each case permitted in any manner material to be Incurred under this Indenturesuch Company or any of its Restricted Subsidiaries;
(vC) any agreement or instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationIndebtedness, 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;
(viD) restrictions provisions in agreements or instruments that prohibit the payment of dividends or the making of other distributions with respect to any Capital Stock of a Restricted Subsidiary Person other than on a pro rata basis;
(E) restrictions on the transfer of assets subject to any Permitted Lien imposed by the holder of such Lien;
(F) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Agreement to any Person pending the closing of such sale;
(G) provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(H) restrictions contained in the terms of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale purchase money Indebtedness or disposition Capitalized Lease Obligations not incurred in violation of Capital Stock or assets of such Restricted Subsidiarythis Indenture; provided, that such restrictions apply solely relate only to the Capital Stock or assets of property financed with such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Indebtedness;
(viiI) customary restrictions imposed on contained in the transfer terms of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to incurred in clause (iii) or (v) of this compliance with Section 3.15(b8.2(a); provided, provided that such Refinancing agreement is not restrictions, taken as a whole, are, in the good faith judgment of the Parent’s Board of Directors, no more materially more restrictive with respect to such encumbrances or and restrictions than those contained in the agreement referred to existing agreements referenced in such clause (iiiA) or (v) as determined in good faith by the Issuer’s senior managementabove;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xiJ) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xiiK) customary an agreement governing Permitted Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (A) or (C) above; provided, however, that the provisions in joint venture agreements relating to dividends such encumbrance or other distributions restriction contained in respect of any such joint venture Indebtedness are no less favorable to any Company or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with any material respect as determined by the covenant described under Section 3.9; provided, that Board of Directors of the Parent in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementC).
Appears in 2 contracts
Samples: Note Purchase Agreement (Vanguard Car Rental Group Inc.), Note Purchase Agreement (Vanguard Car Rental Group Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer Baytex shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock;
(b) pay any Indebtedness or other obligation owed to the Issuer Baytex or any other Restricted Subsidiary;
(iic) make loans or advances to, or make any Investment in, the Issuer to Baytex or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Baytex or any other Restricted Subsidiary.
, except (bin each case) Section 3.15(a) shall not apply to for such encumbrances or restrictions existing under or by reason ofof any of the following:
(i) applicable lawthis Indenture, ruleany Guarantee, regulation or orderthe Debt Securities, the Senior Group Facilities and any other agreement in effect on the Closing Date;
(ii) this Indentureapplicable law;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest interest, or of any contract, of Baytex or any Restricted Subsidiary, or any customary restriction on relating to the ability property covered thereby and entered into in the ordinary course of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenturebusiness;
(viv) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by Baytex or any Restricted Subsidiary in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(viv) restrictions any encumbrance or restriction contained in contracts for sales of assets permitted by Section 5.11 with respect to a Restricted Subsidiary of the Issuer imposed assets to be sold pursuant to a binding such contract; or
(vi) any encumbrance or restriction existing under any agreement which has been entered into for that extends, renews, refinances or replaces the sale agreements containing the encumbrances or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
foregoing clauses (viii) customary restrictions imposed on the transfer of copyrighted or patented materials;
and (viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(biv); provided, provided that such Refinancing agreement is not materially more restrictive with respect to the terms and conditions of any such encumbrances or restrictions are not less favourable in any material respect to the Debtholders than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property agreement so acquired;
(xi) restrictions on cash extended, renewed, refinanced or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 2 contracts
Samples: Trust Indenture (Baytex Energy Corp.), Trust Indenture (Baytex Energy Corp.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Corporation will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or enter into any agreement with any Person that would cause to become effective effective, any consensual encumbrance or restriction of any kind, on the ability of any Restricted Subsidiary to:
to (i) pay dividends dividends, in cash or otherwise, or make any other distributions distribution on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits, to the Issuer Corporation or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Corporation or any other Restricted Subsidiary, (iii) make any Investment in the Corporation or any other Restricted Subsidiary or pay (iv) transfer any Indebtedness owed of its properties or assets to the Issuer Corporation or any other Restricted Subsidiary;
, except for: (ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iiia) any encumbrance or restriction pursuant to an existing under any agreement in effect at on the Issue Date; (b) any encumbrance or entered into restriction, with respect to a Person that is not a Restricted Subsidiary of the Corporation on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on at the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of time such Person becomes a Restricted Subsidiary to dividendof the Corporation, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness and not Incurred incurred in connection with, or in anticipation or contemplation of, the relevant acquisitionsuch Person becoming a Restricted Subsidiary; provided, merger or consolidationhowever, which encumbrance or restriction is that such encumbrances and restrictions are not applicable to the Corporation or any Personother Restricted Subsidiary, or the properties or assets of the Corporation or any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely (c) customary provisions restricting the subletting or assignment of any lease or the assignment of any other contract to which the Capital Stock Corporation or assets of such any Restricted Subsidiary being sold (and in the case of Capital Stockis a party, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted which lease or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement contract is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired entered into in the ordinary course of business and Capitalized Lease Obligations that impose restrictions consistent with past practice; (d) any encumbrance or restriction contained in contracts for (x) sales of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues stock permitted by Section 2.07 of this First Supplemental Indenture or (y) the purchase of assets or stock which arises out of an earn-out or similar arrangement; provided that, in each case, such joint venture;
encumbrance or restriction relates only to assets being purchased or sold pursuant to the contract containing such encumbrances or restriction; (xiiie) restrictions any encumbrance or restriction customarily contained in Indebtedness Incurred by any security agreement or mortgage which security agreement or mortgage creates a Restricted Subsidiary in compliance with the covenant described Lien permitted under Section 3.9this Indenture; provided, provided that (A) such restrictions are not materially more restrictive with respect encumbrance or restriction relates only to assets subject to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior managementLien; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.
Appears in 2 contracts
Samples: First Supplemental Indenture (Cbre Holding Inc), Supplemental Indenture (Cb Richard Ellis Services Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) belowSection 4.14(b), the Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on or in respect of its Capital Stock Equity Interests to the Issuer Company or any other Restricted Subsidiary or Subsidiary;
(2) pay any Indebtedness Debt owed to the Issuer Company or any other Restricted Subsidiary;
(ii3) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
(iii4) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.14(a) shall not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in the Credit Agreement or any other agreements in effect on the Issue Date, and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, in the good faith judgment of the Company, no less favorable in any material respect to the Holders than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing pursuant to this Indenture, the Notes or the Note Guarantees;
(3) existing under or by reason of:
(i) of applicable law, rule, regulation or order;
(4) existing under any agreements or other instruments of, or with respect to:
(A) any Person, or the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary; or
(B) any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary; which encumbrances or restrictions referred to in this Section 4.14(b)(4): (i) are not applicable to any other Person or the property or assets of any other Person and (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement were not put in effect at or entered into on the Issue Date, place in anticipation of such event and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings thereof; providedof any of the foregoing, provided that any the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, in the good faith judgment of the Company, no less favorable in any material respect to the Holders than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(5) of the type described in Section 4.14(a)(4) arising or agreed to (i) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is not materially more restrictive subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such encumbrances partnership, limited liability company, joint venture or restrictions than those in existence on the Issue Date as determined in good faith similar Person or (iii) by the Issuer’s senior management;
(iv) customary non-assignment provisions virtue of any contract and customary provisions restricting assignment Lien on, or subletting in agreement to transfer, option or similar right with respect to any lease governing a leasehold interest of property or assets of, the Company or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v6) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer and imposed pursuant to a binding an agreement which that has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, the Restricted Subsidiary pending closing of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)sale or disposition that is permitted by this Indenture;
(vii7) consisting of customary restrictions imposed on the transfer of copyrighted or patented materialspursuant to any Permitted Receivables Financing;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred 8) existing pursuant to an agreement referred to Permitted Refinancing Debt; provided that the encumbrances and restrictions contained in clause (iii) or (v) of this Section 3.15(b); providedthe agreements governing such Permitted Refinancing Debt are, that such Refinancing agreement is not materially more restrictive with taken as a whole, no less favorable in any material respect to such encumbrances or restrictions the Holders than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by agreements governing the Issuer’s senior managementDebt being refinanced;
(ix9) Liens permitted to be Incurred pursuant to consisting of restrictions on cash or other deposits or net worth imposed by customers, suppliers or required by insurance surety bonding companies, in each case, in the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x10) Purchase Money Indebtedness existing pursuant to purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations Capital Leases or operating leases that impose encumbrances or restrictions of the nature discussed in clause (iiiSection 4.14(a)(4) of Section 3.15(a) above on the property so acquiredacquired or covered thereby;
(xi11) existing pursuant to customary provisions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements required in connection with the entering into of such transaction; or
(12) existing pursuant to any agreement or instrument relating to any Debt or Preferred Stock of a Restricted Subsidiary permitted to be Incurred subsequent to the Issue Date by Section 4.06 if (A) the encumbrances and restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business are not materially more restrictive disadvantageous to the Holders than those existing on the Issue Date is customary in comparable financings (as determined in good faith by the Issuer’s senior management;
Company) and (xiiB) customary provisions in joint venture agreements relating either (x) the Company determines that such encumbrance or restriction will not adversely affect the Issuers’ ability to dividends make principal and interest payments on the Notes as and when they come due or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiiiy) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementDebt.
Appears in 2 contracts
Samples: Indenture (Foresight Energy LP), Indenture (Foresight Energy LP)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary of the Company, (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary of the Company or (be) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, law or any applicable rule, regulation or order;
, (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted SubsidiarySubsidiary of the Company, or any (iii) customary restriction restrictions on the ability transfers of property subject to a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case Lien permitted to be Incurred under this Indenture;
, (iv) the New Credit Agreement as in effect on the Issue Date, (v) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Company in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such Restricted Subsidiary; providedencumbrance or restriction, that by its terms, terminates on the earlier of the termination of such restrictions apply solely agreement or the consummation of such agreement and so long as such restriction applies only to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stockto be sold), its Subsidiaries);
(vii) customary restrictions imposed any agreement in effect on the transfer of copyrighted or patented materials;
Issue Date, (viii) an this Indenture and the Guarantees, and (ix) any agreement governing Indebtedness Incurred to Refinance that amends, extends, refinances, renews or replaces any agreement described in the Indebtedness issued, assumed or Incurred pursuant to an foregoing clauses; provided that the terms and conditions of any such agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is are not materially more restrictive less favorable to the Holders of the Securities with respect to such encumbrances or dividend and payment restrictions than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash agreement amended, extended, refinanced, renewed or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 2 contracts
Samples: Indenture (Group Maintenance America Corp), Indenture (Group Maintenance America Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, provided that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the IssuerCompany’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, provided that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, provided that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the IssuerCompany’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this Section 3.15(a3.15(b) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the IssuerCompany’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, provided that such restrictions (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the IssuerCompany’s senior management or (B) such Incurrence will not materially impair constitute financial covenants or similar restrictions that limit the Issuer’s ability to pay dividends or make payments distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the Notes when due as determined in good faith by the Issuer’s senior managementdeclaration or payment of dividends or other distributions; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the IssuerCompany’s senior management.
Appears in 2 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company to (i) pay dividends or make any other distributions distribution on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (ii) pay any Indebtedness owed to the Issuer Company or any other a Restricted Subsidiary;
Subsidiary of the Company, (iiiii) make loans or advances to, or make any Investment in, in the Issuer Company or any other a Restricted Subsidiary; or
Subsidiary of the Company or (iiiiv) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iiia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Supplemental Indenture; (b) any encumbrance or restriction, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by that was not a LienRestricted Subsidiary of the Company on the date of this Supplemental Indenture, in each existence at the time such Person becomes a Restricted Subsidiary of the Company and, in the case permitted to be Incurred under this Indenture;
of clauses (va) any instrument governing Acquired Indebtedness and (b), not Incurred incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which such Person becoming a Restricted Subsidiary; (c) any encumbrance or restriction is not applicable to existing under any Personagreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (a) and (b), or in this clause (c), provided that the properties or assets terms and conditions of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions are not materially less favorable to the holders of the Notes than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of agreement evidencing the covenant described under Section 3.17 Indebtedness so extended, renewed, refinanced or replaced (except that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations an encumbrance or restriction that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business is not materially more restrictive than those existing on set forth in this Supplemental Indenture and the Issue Date Indenture shall in any event be permitted hereunder); and (d) any encumbrance or restriction created pursuant to an asset sale agreement, stock sale agreement or similar instrument pursuant to which an Asset Sale permitted under Section 4.14 is to be consummated, so long as determined in good faith by such restriction or encumbrance shall be effective only for a period from the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect execution and delivery of such joint venture agreement or the securities, assets or revenues of instrument through a termination date not later than 270 days after such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances execution and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementdelivery.
Appears in 2 contracts
Samples: Supplemental Indenture (Mt Veeder Corp), Supplemental Indenture (Candanaigua B V)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (ii) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
, or (iii) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (ia) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement the Credit Agreement as in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; providedprovided that such amendments, that restatements, renewals, replacement or refinancings are no more restrictive in the aggregate with respect to such dividend and other payment restrictions than those contained in the Credit Agreement (or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
refinancing, (ivb) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiaryapplicable law, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vc) any instrument governing Indebtedness or Capital Stock of an Acquired Person by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness not Incurred was incurred in connection with, or in anticipation or contemplation of, the relevant with such acquisition, merger or consolidation, which encumbrance or ); provided that (1) such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person, and (2) the consolidated net income of an Acquired Person or for any period prior to such acquisition shall not be taken into account in determining whether such acquisition was permitted by the properties or assets terms of the Person so acquired;
this Indenture, (vid) restrictions with respect to a Restricted Subsidiary by reason of the Issuer imposed pursuant to a binding agreement which has been customary non-assignment provisions in leases entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case ordinary course of Capital Stockbusiness and consistent with past practices, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xe) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that only impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
, (xif) restrictions on cash an agreement for the sale or other deposits imposed by customers under contracts disposition of the Capital Stock or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect assets of such joint venture or the securities, assets or revenues of Restricted Subsidiary; provided that such joint venture;
(xiii) restrictions in Indebtedness Incurred by a restriction is only applicable to such Restricted Subsidiary in compliance with or assets, as applicable, and such sale or disposition otherwise is permitted under the covenant described under Section 3.94.14; and provided, further, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 270 days after such execution and delivery, (Ag) Refinancing Indebtedness permitted under this Indenture; provided that the restrictions contained in the agreements governing such restrictions Refinancing Indebtedness are not materially no more restrictive with respect in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management refinancing or (Bh) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementthis Indenture.
Appears in 2 contracts
Samples: Indenture (Young Broadcasting Inc /De/), Indenture (Young Broadcasting Inc /De/)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall Shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (ii) pay any Indebtedness Debt owed to the Issuer RFR or any other Restricted Subsidiary;
, (iiiii) make loans or advances to, or make any Investment investment in, the Issuer RFR or any other Restricted Subsidiary; or
, or (iiiiv) transfer any of its property properties or assets to the Issuer RFR or any other Restricted Subsidiary.
Subsidiary (b) Section 3.15(a) shall not apply to collectively, “Payment Restrictions”), except for such encumbrances or restrictions existing under or by reason of:
of (iA) applicable law, rulerules or regulations, regulation or order;
any order or ruling by any Governmental Authority; (ii) this Indenture;
(iiiB) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue DateClosing Date (including, without limitation, this Agreement, the Installment Note Agreement and any amendments, restatements, renewals, replacements or refinancings thereofother agreements described in Schedule 5.04(e)); provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(ivC) customary non-assignment provisions of any contract and customary provisions restricting assignment contract, license or subletting in any lease governing a leasehold interest of RFR or any Restricted Subsidiary; (D) customary restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; (E) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (iv) above on the property so acquired; (F) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary pursuant to an agreement that has been entered into for a sale of all or substantially all the Capital Stock or assets of such Restricted Subsidiary, to the extent such sale is permitted by this Agreement; (G) any agreement or other instrument governing Debt, Preferred Stock or Redeemable Capital Stock of a Person acquired by RFR or any customary restriction on the ability Restricted Subsidiary (or of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, of such Person) in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties properties, assets or Subsidiaries of the Person, so acquired; (H) provisions contained in agreements or instruments relating to Debt or Preferred Stock which prohibit the transfer of all or substantially all of the assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary obligor or issuer thereunder unless the transferee shall assume the obligations of the Issuer imposed pursuant to a binding obligor or issuer under such agreement which has been entered into for or instrument; or (I) encumbrances or restrictions contained in any agreement or instrument governing RFR Permitted Refinancing Debt; provided that the sale encumbrances or disposition restrictions of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement type referred to in clause (i), (ii), (iii) or (viv) of this Section 3.15(b); providedabove, that contained in such agreement governing such RFR Permitted Refinancing agreement is not materially Debt are no more restrictive with respect to such encumbrances or restrictions (taken as a whole) than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by governing the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementDebt being refinanced.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Rayonier Inc), Revolving Credit Agreement (Rayonier Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall 10.1 The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(b) pay any Indebtedness Debt owed to the Issuer Company or any other Restricted Subsidiary;
(iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary, provided that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (ii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
10.2 The provisions of paragraph 10.1 above will not apply to:
(a) encumbrances and restrictions imposed by the Senior Secured Notes Documents or the Finance Documents;
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under contained in any agreement in effect on the Closing Date;
(c) with respect to restrictions or by reason of:
encumbrances referred to in paragraph 10.1(d) above, encumbrances and restrictions: (i) applicable lawthat restrict in a customary manner the subletting, ruleassignment or transfer of any properties or assets that are subject to a lease, regulation license, conveyance or orderother similar agreement to which the Company or any Restricted Subsidiary is a party or (ii) contained in operating leases for real property and restricting the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(iid) this Indenture;
(iii) encumbrances or restrictions contained in any encumbrance agreement or restriction pursuant other instrument of a Person or relating to an agreement assets acquired by the Company or any Restricted Subsidiary in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings time of such acquisition (but not created in contemplation thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vie) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets permitted by paragraph 6 of such Restricted Subsidiary; provided, that such restrictions apply solely this Schedule with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Company’s Subsidiaries by another Person;
(viif) customary encumbrances or restrictions imposed on the transfer of copyrighted by applicable law or patented materialsregulation or by governmental licenses, concessions, franchises or permits;
(viiig) an agreement governing Indebtedness Incurred to Refinance encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the Indebtedness issued, assumed ordinary course of business;
(h) encumbrances or Incurred pursuant to an agreement referred to restrictions in clause customary provisions in joint venture and similar agreements entered into in good faith; provided that (iiix) the encumbrance or (v) of this Section 3.15(b); provided, that such Refinancing agreement restriction is not materially more restrictive with respect disadvantageous to such encumbrances or restrictions the Finance Parties than those contained is customary in the agreement referred to in such clause comparable agreements (iii) or (v) as determined in good faith by the Issuer’s senior managementCompany) and (y) the Company determines in good faith that any such encumbrance or restriction will not materially affect the ability of the Company or any Guarantor to make any principal or interest payments on the Senior Secured Notes;
(ixi) Liens in the case of paragraph 10.1(d) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business;
(j) any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements;
(k) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in paragraphs (a), (b), (c), (d), (h) or (i) of this paragraph (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Finance Parties taken as a whole than the encumbrances and restrictions contained in such Initial Agreement (as determined in good faith by the Company);
(l) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Debt permitted to be Incurred pursuant to the provisions of paragraph 1 of this Schedule if either (i) the covenant described under Section 3.17 that limit encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the right of any person to transfer Finance Parties than the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired encumbrances and restrictions contained in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause Initial Agreements (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
Company) or (xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (Aii) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to encumbrance or restriction is customary in agreements related to obligations referenced in clause comparable financings (iii) above as determined in good faith by the Issuer’s senior management Company) and either: (x) the Company determines that such encumbrance or (B) such Incurrence restriction will not materially impair affect the IssuerCompany’s ability to make principal or interest payments under on the Senior Secured Notes as and when they come due as determined or (y) such encumbrance or restriction applies only if a default occurs relating to such Debt;
(m) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in paragraph 10.1 or paragraph (m) of this paragraph; provided that such amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the good faith by judgment of the IssuerCompany’s senior managementBoard of Directors, no more restrictive (taken as a whole) with respect to such encumbrances or restrictions in any material respect than those contained in the encumbrances or restrictions prior to such amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or refinancing; andor
(xivn) net worth provisions with respect to restrictions or encumbrances referred to in leases entered into paragraph 10.1(d) above, encumbrances or restrictions existing by the Issuer or reason of any Restricted Subsidiary in the ordinary course Lien permitted under paragraph 5 of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementthis Schedule.
Appears in 2 contracts
Samples: Senior Revolving Facility Agreement (Nord Anglia Education, Inc.), Senior Revolving Facility Agreement (Nord Anglia Education, Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise enter into or cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other interest or participation in, or measured by, its profits to the extent owned by the Company or any Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, in the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iiid) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
, except for (i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into existence on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(ivii) customary non-assignment provisions of provisions, (iii) any contract and customary provisions restricting assignment encumbrances or subletting restriction pertaining to an asset subject to a Lien to the extent set forth in the security documentation governing such Lien, (iv) any lease governing a leasehold interest of any Restricted Subsidiary, encumbrance or any customary restriction on the ability of applicable to a Restricted Subsidiary to dividendat the time that it becomes a Restricted Subsidiary that is not created in contemplation thereof, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (iv) above; provided that the terms and conditions of any such encumbrance or restriction are not applicable materially less favorable to any Person, the holders of Notes than those under or pursuant to the agreement being replaced or the properties or assets of any Personagreement evidencing the Indebtedness refinanced, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to any encumbrance or restriction imposed upon a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (or any Asset Sale to the extent limited to the Capital Stock or assets in question, and in the case of Capital Stock, its Subsidiaries);
(vii) any customary restrictions imposed on the transfer of copyrighted encumbrance or patented materials;
(viii) restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Permitted Indebtedness Incurred to Refinance contained in any Debt Securities or Permitted Credit Facility; provided that the Indebtedness issued, assumed terms and conditions of any such encumbrance or Incurred pursuant to an agreement referred to restriction contained in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially any Debt Securities are no more restrictive with respect to such encumbrances or restrictions than those contained in this Indenture; provided, further, that (subject to customary net worth, leverage, invested capital and other financial covenants and the absence of default under such agreement referred to in or instrument) the provisions of such clause (iii) agreement or (v) as determined in good faith by instrument permit the Issuer’s senior management;
(ix) Liens permitted to be Incurred payment of interest and principal and mandatory repurchases pursuant to the provisions terms of this Indenture and the Notes and other Indebtedness (other than Subordinated Indebtedness) that is solely an obligation of the covenant described under Section 3.17 Company; and provided, further, that limit such agreement or instrument may contain customary covenants regarding the right merger of or sale of all or any person to transfer substantial part of the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in Subsidiary, customary restrictions on transactions with affiliates and customary subordination provisions governing indebtedness owed to the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementCompany or any Restricted Subsidiary.
Appears in 2 contracts
Samples: Indenture (Rhythms Net Connections Inc), Indenture (Rhythms Net Connections Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Parent will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary toSubsidiary:
(i1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(2) pay any Indebtedness owed to the Issuer Parent or any other Restricted Subsidiary;
(ii3) make loans or advances to, or make any Investment in, to the Issuer Parent or any other Restricted Subsidiary; or
(iii4) transfer any of its property properties or assets to the Issuer Parent or any other Restricted Subsidiary.
(b) The provisions described in Section 3.15(a4.08(a) shall hereof will not apply to to:
(1) encumbrances or and restrictions existing under or by reason of:
(i) applicable lawof the Notes, rulethis Indenture, regulation the Note Guarantees or orderany Non-Recourse Financing outstanding as of the Issue Date;
(ii2) encumbrances and restrictions imposed by provisions in agreements relating to Non-Recourse Financing that is permitted by this IndentureIndenture to be incurred;
(iii3) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09 hereof if (x) Parent’s Board of Directors or senior management determines that such encumbrance or restriction will not materially adversely affect the Parent’s ability to make principal and interest payments on the Notes as and when they fall due; or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness;
(4) any agreement or instrument in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive ;
(5) with respect to restrictions or encumbrances referred to in clause (a)(4) above, encumbrances and restrictions: (i) that restrict in a customary manner the subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Parent or any Restricted Subsidiary is a party; and (ii) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(6) encumbrances or restrictions than those contained in existence on the Issue Date as determined in good faith any agreement or other instrument of (i) a Person acquired by the Issuer’s senior management;
Parent or any Restricted Subsidiary in effect at the time of such acquisition or (ivii) customary non-assignment provisions of any contract and customary provisions restricting assignment an Unrestricted Subsidiary, at the time it is designated or subletting in any lease governing deemed to become a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationcase, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person so acquiredPerson, and was not put in place in contemplation of such event;
(vi7) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely permitted by Section 4.10 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Parent’s Subsidiaries by another Person;
(vii) customary 8) encumbrances or restrictions imposed on the transfer existing under or by reason of copyrighted applicable law, regulation or patented materialssimilar restriction or by governmental licenses, concessions, franchises or permits;
(viii9) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii10) customary provisions in joint venture agreements and other similar agreements or arrangements relating to dividends or other distributions in respect of such joint venture or entered into in the securities, assets or revenues ordinary course of such joint venturebusiness;
(xiii11) in the case of clause (a)(4) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Finance Lease Obligations;
(12) any encumbrance or restriction arising by reason of customary non-assignment provisions;
(13) customary restrictions on fiduciary cash held by the Parent’s Restricted Subsidiaries;
(14) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements;
(15) customary restrictions on the transfer of non-cash assets contained in power purchase agreements and similar agreements;
(16) restrictions on Non-Recourse Subsidiaries in Indebtedness Incurred documentation evidencing Project Obligations;
(17) customary provisions in agreements governing Hedging Obligations;
(18) customary provisions contained in agreements entered into in the ordinary course of business or encumbrances or restrictions existing under or by reason of any Lien permitted to be incurred pursuant to Section 4.12;
(19) (a) encumbrances or restrictions contained in the charter, partnership agreement or limited liability company agreement or other governing documents of a Restricted Subsidiary relating to tax equity or similar financings and (b) any encumbrance or restriction pursuant to applicable law and other customary conditions and restrictions contained in compliance with any agreement, document or instrument relating to the covenant described under formation, operation and regulatory requirements or limitations related to a Captive Insurance Subsidiary;
(20) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary; or
(21) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, renewal, replacement or refinancing of Indebtedness incurred pursuant to, or that otherwise extends, renews, refunds, increases, supplements, modifies, refinances or replaces, an agreement, contract, obligation or instrument referred to in clauses (1), (2), (4), (6) or (7) of this Section 3.94.08(b) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1), (2), (4), (6) or (7) of this Section 4.08(b); provided, however, that (A) the encumbrances and restrictions with respect to such restrictions Restricted Subsidiary contained in any such agreement or instrument are not materially more restrictive with respect to such taken as a whole than the encumbrances and restrictions than those contained in such Restricted Subsidiary was subject agreements and instruments referred to in agreements related to obligations referenced in clause clauses (iii1), (2), (4), (6) above or (7) of this Section 4.08(b) (as determined in good faith by the Issuer’s senior management of the Parent). For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Equity in receiving dividends or (B) such Incurrence distributions prior to dividends or distributions being paid on common stock will not materially impair be deemed a restriction on the Issuer’s ability to make payments under distributions on Capital Stock and (2) the Notes when due as determined in good faith subordination of loans or advances made to the Parent or a Restricted Subsidiary to other Indebtedness incurred by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Parent or any such Restricted Subsidiary in the ordinary course of business will not materially more restrictive than those existing be deemed a restriction on the Issue Date as determined in good faith by the Issuer’s senior managementability to make loans or advances.
Appears in 2 contracts
Samples: Indenture (Sunnova Energy International Inc.), Indenture (Sunnova Energy International Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind, on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions distribution on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Subsidiary, (ii) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
, (iiiii) make loans or advances to, or make any Investment in, in the Issuer or any other Restricted Subsidiary; or
Subsidiary or (iiiiv) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
, except (ba) Section 3.15(a) shall not apply to encumbrances any encumbrance or restrictions restriction existing under or by reason of:
(i) of applicable law, rule, regulation or order;
; (ii) this Indenture;
(iiib) any encumbrance or restriction existing under or by reason of customary non-assignment provisions of any lease governing a leasehold interest of the Issuer, or any Restricted Subsidiary; (c) any restriction pursuant to an agreement in effect at or entered into on the Issue Closing Date; (d) any restriction, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by that is not a LienSubsidiary on the Closing Date, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness existence at the time such Person becomes a Restricted Subsidiary and not Incurred incurred in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary; (e) any restriction existing under any agreement that extends, renews, refinances or replaces the relevant acquisitionagreements containing the restrictions in the foregoing clauses (c) and (d), merger provided that the terms and conditions of any such restrictions are not materially less favorable to the Holders than those under or consolidationpursuant to the agreement so extended, which encumbrance renewed, refinanced or restriction is replaced (in the opinion of the Board of Directors of the Issuer whose determination shall be conclusive); (f) arising or agreed to in the ordinary course of business, not applicable relating to any PersonIndebtedness, and that do not, individually or in the properties or assets aggregate, detract from the value of any Person, other than the Person or the properties property or assets of the Person so acquired;
Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary; (vig) restrictions with respect to a Restricted Subsidiary of the Issuer and imposed pursuant to a binding an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and h) contained in the case terms of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted any Indebtedness or patented materials;
(viii) an any agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred which such Indebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in clause such Indebtedness or agreement, (iiiB) the encumbrance or (v) of this Section 3.15(b); provided, that such Refinancing agreement restriction is not materially more restrictive with respect disadvantageous to such encumbrances or restrictions the Holders than those contained is customary in the agreement referred to in such clause comparable financings (iii) or (v) as determined in good faith by the Issuer’s senior management;
) and (ixC) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 Issuer determines that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash encumbrance or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence restriction will not materially impair affect the Issuer’s 's ability to make principal or interest payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementNotes.
Appears in 2 contracts
Samples: Indenture (Genesis Eldercare Acquisition Corp), Indenture (Multicare Companies Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary of the Company, (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary of the Company or (be) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, law or any applicable rule, regulation or order;
, (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted SubsidiarySubsidiary of the Company, or any (iii) customary restriction restrictions on the ability transfers of property subject to a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case Lien permitted to be Incurred under this Indenture (including purchase money Liens permitted under this Indenture;
), (viv) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (viv) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such Restricted Subsidiary; providedencumbrance or restriction, that by its terms, terminates on the earlier of the termination of such restrictions apply solely agreement or the consummation of such agreement and so long as such restriction applies only to the Capital Stock or assets to be sold), (vi) any agreement in effect on January 28, 1999, including, without limitation, the Indenture, dated as of such Restricted Subsidiary being sold January 28, 1999 among the Company, State Street Bank and Trust Company and the guarantors named therein (the "1999 Indenture") and the Credit Facility, as defined in the case of Capital Stock1999 Indenture, its Subsidiaries);
(vii) customary restrictions imposed on this Indenture and the transfer of copyrighted or patented materials;
Guarantees, and (viii) an any agreement governing Indebtedness Incurred to Refinance that amends, extends, refinances, renews or replaces any agreement described in the Indebtedness issued, assumed or Incurred pursuant to an foregoing clauses; provided that the terms and conditions of any such agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is are not materially more restrictive less favorable to the Holders of the Securities with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash agreement amended, extended, refinanced, renewed or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (NBH Holdings Co Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) belowSection 4.14(b), the Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions on or in respect of its Capital Stock Equity Interests to the Issuer Company or any other Restricted Subsidiary or Subsidiary;
(2) pay any Indebtedness Debt owed to the Issuer Company or any other Restricted Subsidiary;
(ii3) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
(iii4) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.14(a) shall not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in the Credit Agreement or any other agreements in effect on the Issue Date, and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, in the good faith judgment of the Company, no less favorable in any material respect to the noteholders than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing pursuant to this Indenture, the Notes or the Note Guarantees;
(3) existing under or by reason of:
(i) of applicable law, rule, regulation or order;
(4) existing under any agreements or other instruments of, or with respect to:
(A) any Person, or the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary; or
(B) any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary; which encumbrances or restrictions referred to in Section 4.14(b)(4): (i) are not applicable to any other Person or the property or assets of any other Person and (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement were not put in effect at or entered into on the Issue Date, place in anticipation of such event and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings thereof; providedof any of the foregoing, provided that any the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, in the good faith judgment of the Company, no less favorable in any material respect to the noteholders than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(5) of the type described in Section 4.14(a)(4) arising or agreed to (i) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is not materially more restrictive subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such encumbrances partnership, limited liability company, joint venture or restrictions than those in existence on the Issue Date as determined in good faith similar Person or (iii) by the Issuer’s senior management;
(iv) customary non-assignment provisions virtue of any contract and customary provisions restricting assignment Lien on, or subletting in agreement to transfer, option or similar right with respect to any lease governing a leasehold interest of property or assets of, the Company or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v6) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer and imposed pursuant to a binding an agreement which that has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock of, or property and assets of, the Restricted Subsidiary pending closing of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)sale or disposition that is permitted by this Indenture;
(vii7) consisting of customary restrictions imposed on the transfer of copyrighted or patented materialspursuant to any Permitted Receivables Financing;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred 8) existing pursuant to an agreement referred to Permitted Refinancing Debt; provided that the encumbrances and restrictions contained in clause (iii) or (v) of this Section 3.15(b); providedthe agreements governing such Permitted Refinancing Debt are, that such Refinancing agreement is not materially more restrictive with taken as a whole, no less favorable in any material respect to such encumbrances or restrictions the noteholders than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by agreements governing the Issuer’s senior managementDebt being refinanced;
(ix9) Liens permitted to be Incurred pursuant to consisting of restrictions on cash or other deposits or net worth imposed by customers, suppliers or required by insurance surety bonding companies, in each case, in the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x10) Purchase Money Indebtedness existing pursuant to purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations Capital Leases or operating leases that impose encumbrances or restrictions of the nature discussed in clause (iiiSection 4.14(a)(4) of Section 3.15(a) above on the property so acquiredacquired or covered thereby;
(xi11) existing pursuant to customary provisions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements required in connection with the entering into of such transaction; or
(12) existing pursuant to any agreement or instrument relating to any Debt or Preferred Stock of a Restricted Subsidiary permitted to be Incurred subsequent to the Issue Date by Section 4.06 if (A) the encumbrances and restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business are not materially more restrictive disadvantageous to the noteholders than those existing on the Issue Date is customary in comparable financings (as determined in good faith by the Issuer’s senior management;
Company) and (xiiB) customary provisions in joint venture agreements relating either (x) the Company determines that such encumbrance or restriction will not adversely affect the Issuers’ ability to dividends make principal and interest payments on the Notes as and when they come due or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiiiy) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementDebt.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer Tembec Inc. shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on to Tembec Inc. or in any of its Restricted Subsidiaries with respect of to its Capital Stock to the Issuer or any other Restricted Subsidiary interest or pay any Indebtedness owed to the Issuer participation in, or any other Restricted Subsidiarymeasured by, its profits;
(ii) pay any Debt owed to Tembec Inc. or any of its Restricted Subsidiaries;
(iii) make loans or advances to, or make any Investment in, the Issuer to Tembec Inc. or any other of its Restricted SubsidiarySubsidiaries; or
(iiiiv) transfer any of its property or assets to the Issuer Tembec Inc. or any other of its Restricted Subsidiary.
(b) Section 3.15(a) shall Subsidiaries. However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(ia) applicable law, rule, regulation agreements or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement instruments in effect at or entered into on the Issue Date, including agreements or instruments governing Debt outstanding on the Issue Date, and any amendments, modifications, restatements, renewals, replacements increases, supplements, refundings, replacements, refinancings or refinancings extensions thereof; providedprovided that such amendments, that any amendmentmodifications, restatementrestatements, renewalrenewals, replacement increases, supplements, refundings, replacements, refinancings or refinancing is extensions are not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date restrictive, taken as a whole, as determined in good faith by the Issuer’s senior managementCompany, with respect to such dividend and other payment restrictions than those contained in the agreements or instruments governing such Debt on the Issue Date;
(ivb) customary non-assignment provisions an agreement relating to an acquisition of any contract and customary provisions restricting assignment property, so long as the encumbrances or subletting restrictions in any lease governing such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions are not materially more restrictive, taken as a leasehold interest of any Restricted Subsidiarywhole, as determined in good faith by the Company, with respect to such dividend and other payment restrictions than those contained in the agreement prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureextensions;
(vc) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by Tembec Inc. or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the properties property or assets of the Person and its Subsidiaries, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale , and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or disposition of Capital Stock or assets of such Restricted Subsidiaryextensions thereof; provided, provided that such restrictions apply solely to the Capital Stock amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is extensions are not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) restrictive, taken as a whole, as determined in good faith by the Issuer’s senior managementCompany, with respect to such dividend and other payment restrictions than those contained in the agreements or other instruments prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions;
(ixd) customary provisions restricting subletting or assignment of any property or asset that is subject to any lease, contract, or license of Tembec Inc. or any of its Restricted Subsidiaries or provisions in agreements that restrict the assignment or transfer of such agreement or any rights thereunder;
(e) applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(f) any restriction on the sale or other disposition of assets or property securing Debt as a result of a Permitted Lien on such assets or property;
(g) the Note Documents;
(h) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(i) customary provisions limiting the disposition or distribution of assets or property in partnership agreements, limited liability company organizational materials, stockholder agreements, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets (including Equity Interests of Subsidiaries) that are the subject of such agreements;
(j) Liens permitted to be Incurred pursuant to the provisions of the covenant described incurred under this Indenture, including under Section 3.17 4.12, that limit the right of Tembec Inc. or any person of its Restricted Subsidiaries to transfer sell or dispose of the property or assets subject to such Liens;
(xk) Purchase Money Indebtedness any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(l) customary arrangements entered into or incurred by and relating exclusively to a Receivable Subsidiary in connection with a Receivables Transaction that, in the good faith determination of the Company’s Board of Directors, is reasonably necessary to effect such Receivables Transaction;
(i) purchase money obligations for property acquired in the ordinary course of business and Capitalized (ii) Capital Lease Obligations permitted under this Indenture that impose restrictions on the property purchased or leased of the nature discussed described in clause (iiiiv) of the preceding paragraph of this Section 3.15(a) above on the property so acquired;4.8; and
(xin) other Debt of Tembec Inc. or any of its Restricted Subsidiaries permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.9; provided that the restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business contained therein are not materially more restrictive than those existing on the Issue Date restrictive, taken as a whole, as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securitiesCompany, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances dividend and other payment restrictions than those such Restricted Subsidiary was subject to contained in agreements related to obligations referenced this Indenture. Nothing contained in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer this Section 4.8 shall prevent Tembec Inc. or any of its Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementSubsidiaries from creating, incurring or suffering to exist any Permitted Lien or Permitted Collateral Lien.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, provided that any amendmentxxxxxxxxx, restatementxxxxxxxxxxx, renewalxxxxxxx, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the IssuerCompany’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, provided that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, provided that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the IssuerCompany’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this Section 3.15(a3.15(b) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the IssuerCompany’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, provided that such restrictions (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the IssuerCompany’s senior management or (B) such Incurrence will not materially impair constitute financial covenants or similar restrictions that limit the Issuer’s ability to pay dividends or make payments distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the Notes when due as determined in good faith by the Issuer’s senior managementdeclaration or payment of dividends or other distributions; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the IssuerCompany’s senior management.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Borrower will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any of its Restricted Subsidiary to:
Subsidiaries to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, (b) pay any Debt owed to the Issuer Borrower or any other Restricted Subsidiary or pay any Indebtedness owed to of the Issuer or any other Restricted Subsidiary;
Borrower, (iic) make loans or advances to, or make any Investment in, to the Issuer Borrower or any other Restricted Subsidiary; or
Subsidiary of the Borrower or (iiid) transfer any of its property properties or assets to the Issuer Borrower or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by reason ofof any of the following:
(i) applicable law, rule, regulation or order(A) the Senior Credit Agreement and (B) any other agreement in effect on the Closing Date;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, the Borrower or any customary restriction on the ability of a its Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this IndentureSubsidiaries;
(viii) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Borrower or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Debt incurred pursuant to an agreement referred to in clause (i) or (iii) or contained in any amendment to an agreement referred to in clause (i) or (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment (except for any agreement or amendment refinancing the Senior Credit Agreement as to which this proviso shall not apply) are no more restrictive than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreement;
(v) any agreement providing for the incurrence of Debt by a Restricted Subsidiary of the Borrower in compliance with Section 10.01(a), provided that either (A) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such agreement or (B) the encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings or agreements (as determined by the Board of Directors in good faith); and
(vi) restrictions any encumbrance or restriction with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock all or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to substantially all the Capital Stock or assets of such Restricted Subsidiary being sold (and in pending the case closing of Capital Stocksuch sale or disposition, its Subsidiaries);
(vii) customary restrictions imposed on but only to the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, extent that such Refinancing agreement sale or disposition is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith prohibited by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementthis Agreement.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Insignia Financial Group Inc /De/)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Equity Interests or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iib) make loans or advances to, or make guarantee any Investment inIndebtedness or other obligations of, the Issuer Company or any other Restricted Subsidiary; or
, or (iiic) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable lawrestrictions under the 12 3/8% Notes Indenture, ruleas the same may from time to time be modified or amended and restrictions under agreements governing Indebtedness Incurred to refinance the 12 3/8% Notes (or refinancings thereof), regulation in each case, so long as the restrictions as modified or order;
(ii) this Indenture;
(iii) amended or contained in such agreements governing such refinancing Indebtedness, as the case may be, are no less favorable to the holders of the Securities in any encumbrance or restriction pursuant to an agreement in effect at or entered into material respect than the restrictions under the 12 3/8% Notes Indenture on the Issue Date, and ; (ii) restrictions under the Credit Facility so long as such restrictions are no less favorable to the holders of the Securities in any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with material respect to such encumbrances or than the restrictions than those under the Credit Facility in existence effect on the Issue Date as determined in good faith by the Issuer’s senior management;
Date; (iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(viiii) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement under other agreements governing Indebtedness Incurred to Refinance in compliance with this Indenture, provided that any such restrictions permit the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) payment of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant dividends to the provisions Company in amounts and at the times necessary to permit the payment of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above cash interest due on the property so acquired;
(xi) restrictions Securities on cash and after September 1, 2004, but no such permission need apply when a default or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course event of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions default in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances has occurred and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.is
Appears in 1 contract
Samples: Indenture (Golden Sky DBS Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create create, assume or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
to (i) (a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries on or in respect of its Capital Stock or with respect to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits or (b) pay any Indebtedness owed to the Issuer Company or any other of its Restricted Subsidiary;
Subsidiaries, (ii) make loans or advances to, or make any Investment in, to the Issuer Company or any other of its Restricted Subsidiary; or
Subsidiaries, (iii) transfer any of its property or assets properties to the Issuer Company or any other of its Restricted Subsidiary.
Subsidiaries, (biv) Section 3.15(agrant any Liens in favor of the Holders of the Notes and the Trustee or (v) shall not apply to guarantee the Notes or any renewals or refinancings thereof, except for such encumbrances or restrictions existing under or by reason of:
of (iA) Existing Indebtedness, (B) the Senior Credit Facility, (C) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vD) any instrument governing Acquired Indebtedness not or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was Incurred in connection with, with or in anticipation or contemplation of, the relevant of such acquisition, merger or consolidation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties or assets property of the Person Person, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, provided that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital StockIndebtedness, its Subsidiaries);
such Indebtedness was permitted by the terms of this Indenture to be Incurred, (viiE) customary restrictions imposed on the transfer of copyrighted non-assignment provisions in leases, licenses, sales agreements or patented materials;
other contracts (viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant but excluding contracts related to the provisions extension of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xcredit) Purchase Money Indebtedness for property acquired entered into in the ordinary course of business and Capitalized Lease Obligations that impose consistent with past practices, (F) restrictions imposed pursuant to a binding agreement for the sale or disposition of all or substantially all of the nature discussed Equity Interests or assets of any Restricted Subsidiary, provided such restrictions apply solely to the Equity Interests or assets being sold, (G) restrictions imposed by Permitted Liens on the transfer of the assets that are subject to such Liens, (H) Permitted Refinancing Indebtedness Incurred to refinance Existing Indebtedness or Indebtedness of the type described in clause (iiiD) above, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, as a whole, than those contained in the agreements governing the Indebtedness being refinanced, and (I) the terms of Section 3.15(a) above on Purchase Money Indebtedness, but only to the extent such Purchase Money Indebtedness encumbers or restricts the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of acquired with such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementPurchase Money Indebtedness.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment investment in, the Issuer Company or any other Restricted Subsidiary; or
, or (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary (b) Section 3.15(a) shall not apply to collectively, "Payment Restrictions"), except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rulerules or regulations, regulation or order;
any order or ruling by any governmental authority; (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue DateDate (including, and without limitation, the Credit Agreement) or any amendments, restatements, renewals, replacements or refinancings thereofagreement relating to any Permitted Indebtedness; provided, however, that any amendment, restatement, renewal, replacement or refinancing is not materially the encumbrances and restrictions contained in the agreements governing such Permitted Indebtedness are no more restrictive with respect to such encumbrances or restrictions Payment Restrictions than those set forth in existence the Credit Agreement as in effect on the Issue Date as determined in good faith by the Issuer’s senior management;
Date; (iviii) customary non-assignment provisions of any contract and customary provisions restricting assignment contract, license or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary; (iv) customary restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; (v) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (d) above on the property so acquired; (vi) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary pursuant to an agreement that has been entered into for the sale of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary; (vii) any agreement or other instrument governing Indebtedness of a Person acquired by the Company or any customary restriction on the ability Restricted Subsidiary (or of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, of such Person) in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties properties, assets or Subsidiaries of the Person, so acquired; (viii) provisions contained in agreements or instruments relating to Indebtedness which prohibit the transfer of all or substantially all of the assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary obligor thereunder unless the transferee shall assume the obligations of the Issuer imposed pursuant to a binding obligor under such agreement which has been entered into for or instrument; or (ix) Permitted Refinancing Indebtedness, provided that the sale encumbrances or disposition restrictions of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement type referred to in clause (iii) a), (b), (c), or (vd) of this Section 3.15(b); providedabove, that contained in agreements governing such Permitted Refinancing agreement is not materially Indebtedness are no more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by governing the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbeing refinanced.
Appears in 1 contract
Samples: Indenture (U S Timberlands Co Lp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall Each Credit Party will not, and shall will not cause or permit any other member of its the Restricted Subsidiaries Group to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any member of the Restricted Subsidiary Group to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or pay any Indebtedness owed to the Issuer participation in, or any other Restricted Subsidiarymeasured by, its profits;
(ii) pay any Debt owed to any other member of the Restricted Group;
(iii) make loans or advances to, or make any Investment in, the Issuer or to any other member of the Restricted SubsidiaryGroup; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other member of the Restricted SubsidiaryGroup, provided that (A) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (B) the subordination of (including the application of any standstill requirements to) loans or advances made to any member of the Restricted Group to other Debt Incurred by such member of the Restricted Group shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 3.15(a6.10(a) shall above will not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable law, rule, regulation or orderencumbrances and restrictions imposed by the Credit Documents;
(ii) encumbrances or restrictions contained in any agreement in effect on the Amendment and Restatement Date and (to the extent not otherwise permitted by this IndentureSection 6.10(b)) listed on Schedule 7;
(iii) encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any encumbrance guarantee thereof in accordance with Section 6.1(b), provided that in the case of any such encumbrances or restriction pursuant to an agreement in effect at restrictions imposed under any Credit Facilities, such encumbrances or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is restrictions are not materially more restrictive with respect to such encumbrances or restrictions taken as a whole than those in existence on imposed by this Agreement as of the Issue Date as determined in good faith by the Issuer’s senior managementClosing Date;
(iv) with respect to restrictions or encumbrances referred to in Section 6.10(a)(iv) above, encumbrances and restrictions: (A) that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract properties or assets that are subject to a lease, license, conveyance or other similar agreement to which any member of the Restricted Group is a party or (B) contained in operating leases for real property and customary provisions restricting assignment or subletting in any lease governing a leasehold interest the transfer of any Restricted Subsidiary, or any customary restriction on such real property upon the ability occurrence and during the continuance of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, default in each case permitted to be Incurred under this Indenturethe payment of rent;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person or relating to assets acquired by any member of the Restricted Group in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely permitted by Section 6.6 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Parent’s Subsidiaries by another Person;
(vii) customary encumbrances or restrictions imposed on the transfer of copyrighted by applicable law or patented materialsregulation or by governmental licenses, concessions, franchises or permits;
(viii) an agreement governing Indebtedness Incurred to Refinance encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the Indebtedness issuedordinary course of business;
(ix) encumbrances or restrictions in customary provisions in joint venture and similar agreements entered into in good faith, assumed provided that (A) the encumbrance or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement restriction is not materially more restrictive with respect disadvantageous to such encumbrances or restrictions the Credit Parties than those contained is customary in the agreement referred to in such clause comparable agreements (iii) or (v) as determined in good faith by Borrower) and (B) Borrower determines in good faith that any such encumbrance or restriction will not materially affect the Issuer’s senior managementability of Borrower or any Guarantor to make any principal or interest payments on the Loans;
(x) in the case of Section 6.10(a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business;
(xi) any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements entered into in the ordinary course of business;
(xii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clauses (i), (ii), (iii), (v), (ix), (x) Liens or (xvi) of this Section 6.10(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement, provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Credit Parties taken as a whole than the encumbrances and restrictions contained in such Initial Agreement (as determined in good faith by Borrower);
(xiii) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Debt permitted to be Incurred pursuant to the provisions of Section 6.1 if either (A) the covenant described under Section 3.17 that limit encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the right of any person to transfer Credit Parties than the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired encumbrances and restrictions contained in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause Initial Agreements (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
Borrower) or (xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (AB) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to encumbrance or restriction is customary in agreements related to obligations referenced in clause comparable financings (iii) above as determined in good faith by the Issuer’s senior management Borrower) and either:
(I) Borrower determines that such encumbrance or (B) such Incurrence restriction will not materially impair the Issueraffect Borrower’s ability to make principal, fee or interest payments under on the Notes Loans or Commitments as and when they come due as determined in good faith by the Issuer’s senior management; andor (II) such encumbrance or restriction applies only if a default occurs relating to such Debt;
(xiv) net worth provisions any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in leases entered into by the Issuer Sections 6.10(b)(xii) or any Restricted Subsidiary 6.10(b)(xiii), provided that such amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the ordinary course good faith judgment of business not materially Borrower’s Board of Directors, no more restrictive (taken as a whole) with respect to such encumbrances or restrictions in any material respect than those contained in the encumbrances or restrictions prior to such amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or refinancing;
(xv) with respect to restrictions or encumbrances referred to in Section 6.10(a)(iv) above, encumbrances or restrictions existing on by reason of any Lien permitted under Section 6.5; or
(xvi) encumbrances or restrictions contained in the Issue Date as determined in good faith by CHF Notes Indenture (including the Issuer’s senior managementCHF Notes).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Nord Anglia Education, Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective or enter into any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (i1) pay dividends or make any other distributions on or in respect of its Capital Stock to owned by the Issuer or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Issuer or any other Restricted Subsidiary;
, (ii2) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
Subsidiary thereof or (iii3) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a4.15(a) shall not apply to encumbrances or restrictions existing under or by reason ofthe following:
(i) any encumbrance or restriction in existence on the Issue Date, including those required by the Term Loan Credit Facility or the ABL Revolver or by any other agreement or documents entered into in connection with the Term Loan Credit Facility or the ABL Revolver and any amendments, modifications, restatements, renewals, increases, supplements or Refinancings, of any of the foregoing agreements or documents, or any other Credit Facility, provided that the terms of such amendments, modifications, restatements, renewals, increases, supplements or Refinancings of any such other Credit Facility, in the good-faith judgment of the Issuer, are not, taken as a whole, materially more restrictive than the dividend or other payment restrictions contained in those agreements on the Issue Date or Refinancings thereof;
(ii) any encumbrance or restriction pursuant to an agreement relating to an acquisition of property (whether directly or through the purchase of Equity Interests of the Person owning such property), so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(iii) any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person becoming a Restricted Subsidiary, and which is 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 becoming a Restricted Subsidiary;
(iv) any encumbrance or restriction pursuant to an agreement effecting a permitted Refinancing or extension of Indebtedness issued pursuant to an agreement containing any encumbrance or restriction referred to in Section 4.15(b)(i) through (iii), so long as the encumbrances and restrictions contained in any such Refinancing agreement are not, taken as a whole, in the good-faith judgment of the Issuer, materially more restrictive than the encumbrances and restrictions contained in the agreements governing the Indebtedness being Refinanced;
(v) customary provisions restricting subletting or assignment of any lease, contract, or license of the Issuer or any Restricted Subsidiary, customary provisions restricting the disposition of assets subject to a lease or license, or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(vi) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(ii) this Indenture;
(iiivii) any encumbrance or restriction pursuant to under this Indenture, the Notes and the Note Guarantees;
(viii) any encumbrance or restriction under an agreement in effect at relating to a disposition of assets or Capital Stock, including, without limitation, any agreement for the sale or other disposition of or by a Subsidiary that restricts distributions, loans or transfers by that Subsidiary pending its sale or other disposition;
(ix) restrictions on cash and other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, under contracts entered into on in the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive ordinary course of business;
(x) customary provisions with respect to such encumbrances the disposition or restrictions than those distribution of assets or property in existence on the Issue Date as determined in good faith by the Issuer’s senior managementjoint venture agreements, limited liability company agreements, partnership agreements, shareholder agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vxi) any instrument governing Acquired any Indebtedness not or Capital Stock of a Person acquired by the Issuer or any Restricted Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Incurred or issued in connection with, with or in anticipation or contemplation of, the relevant of such acquisition, merger or consolidation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred;
(xii) purchase-money obligations (including Capital Stock, its SubsidiariesLease Obligations) for property acquired in the ordinary course of business that impose restrictions on that property so acquired of the nature described in Section 4.15(a)(3);
(viixiii) customary restrictions imposed on the transfer provisions of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred agreements relating to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant incurred or to the provisions of the covenant described exist under this Indenture, including under Section 3.17 4.7, that limit the right of any person the debtor to transfer dispose of the assets subject to such Liens;
(xxiv) Purchase Money Indebtedness for property acquired Incurred or Equity Interests issued by an Restricted Subsidiary; provided that the restrictions contained in the agreements or instruments relating thereto (A) either (i) apply only in the event of a payment default or a default with respect to a financial covenant or (ii) shall not, taken as a whole, in the good faith judgment of the Board of Directors of the Issuer, materially adversely affect the Issuer’s ability to pay all principal, interest and premium, if any, on the Notes, and (B) are not, taken as a whole, in the good-faith judgment of the Board of Directors of the Issuer, materially more restrictive than is customary in comparable financings;
(xv) customary encumbrances or restrictions contained in agreements entered into in the ordinary course of business in connection with Hedging Obligations permitted under this Indenture; and
(xvi) any other agreement governing Indebtedness entered into after the Issue Date that contains encumbrances and Capitalized Lease Obligations restrictions that impose restrictions are not, taken as a whole, in the good-faith judgment of the nature discussed in clause (iii) Board of Section 3.15(a) above on Directors of the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not Issuer, materially more restrictive than those existing in effect on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such that Restricted Subsidiary was subject pursuant to agreements in agreements related to obligations referenced in clause (iii) above as determined in good faith by effect on the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; andIssue Date.
(xivc) net worth provisions Nothing contained in leases entered into by this Section 4.15 shall prevent the Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens in compliance with Section 4.7 or (2) restricting the ordinary course sale or other disposition of business not materially more restrictive than those existing on property or assets of the Issue Date as determined Issuer or any Restricted Subsidiary that secure Indebtedness of the Issuer or any Restricted Subsidiary Incurred in good faith by the Issuer’s senior managementaccordance with Sections 4.6 and Section 4.7 in this Indenture.
Appears in 1 contract
Samples: Indenture (FTS International, Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except So long as provided in clause (b) belowany of the Notes are outstanding, the Issuer shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions permitted by applicable law on or in respect of its any Capital Stock to of such Restricted Subsidiary owned by the Issuer or any other Restricted Subsidiary or Subsidiary, (ii) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
, (iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
Subsidiary or (iiiiv) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) . The foregoing provisions shall not apply to encumbrances or restrictions existing under or by reason of:
restrict (A) in the case of clause (i) applicable law), rule, regulation or order;
(ii) this Indenture;
), (iii) or (iv), any such encumbrance or restriction pursuant to an agreement (1) existing on the Issue Date in the Facilities Agreement, the Notes or any other agreements in effect at or entered into on the Issue Date, and any amendmentsextensions, restatementsrefinancings, renewalsrenewals or replacements thereof, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or refinancings thereofrestrictions that are then in effect and that are being extended, refinanced, renewed or replaced; provided(2) applicable to a Restricted Subsidiary which encumbrance or restriction is contained in an agreement or instrument governing or relating to Indebtedness (an "Indebtedness Instrument") provided that, in the case of this clause (2), such encumbrance or restriction applies (x) only to amounts which at any point in time other than during such periods as are described in the following clause (y) are in excess of amounts actually used to pay interest and, at stated maturity, principal (after giving effect to any realization by the Issuer under any applicable Currency Agreement) due and payable (or which are to become due and payable within 30 days) in respect of Indebtedness including the Notes of the Issuer or any Restricted Subsidiary and/or (y) during the pendency of any event that causes, permits or, after notice and/or lapse of time, would cause or permit the holder(s) of the Indebtedness governed by the Indebtedness Instrument to declare any amendment, restatement, renewal, replacement such Indebtedness to be immediately due and payable; (3) existing under or refinancing is not materially more restrictive by reason of applicable law; (4) existing with respect to any Person or the property or assets of such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith Person acquired by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment Issuer or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on Subsidiary and existing at the ability time of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, Person or the properties property or assets of any Person, Person other than the such Person or the properties property or assets of the such Person so acquired;
; (vi5) restrictions with respect to a Restricted Subsidiary of the Issuer and imposed pursuant to a binding an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such (6) imposed upon a Restricted Subsidiary being sold which is solely engaged in the acquisition and financing of receivables in a Receivables Sale Transaction or (and B), in the case of Capital Stockonly clause (iv) of the first paragraph of this covenant, its Subsidiaries);
any such encumbrance or restriction (viiI) that restricts in a customary restrictions imposed on manner the subletting, assignment or transfer of copyrighted any property or patented materials;
asset that is a lease, license, conveyance or contract or similar property or asset; (viiiII) an existing by virtue of any transfer of, agreement governing Indebtedness Incurred to Refinance transfer, option or right with respect to, or Lien on, any property or assets of the Indebtedness issued, assumed Issuer or Incurred pursuant to an agreement referred to in clause (iii) any Restricted Subsidiary not otherwise prohibited by the Notes; or (vIII) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into arising or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends any Indebtedness and that does not individually, or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance together with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to all such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by or restrictions, detract from the Issuer’s senior management value of property or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by assets of the Issuer or any Restricted Subsidiary in any manner material to the ordinary course Issuer or Restricted Subsidiary. Nothing contained in this Section 7(d) shall prevent the Issuer or any Restricted Subsidiary from (a) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 7(g) or (b) restricting the sale or other disposition of business not materially more restrictive than those existing on property or assets of the Issue Date as determined in good faith by Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer’s senior managementIssuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
of the Company to (i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (ii) pay any Indebtedness owed to the Issuer Company or any other of its Restricted Subsidiary;
Subsidiaries, (iiiii) make loans or advances to, or make any Investment in, to the Issuer Company or any other of its Restricted Subsidiary; or
Subsidiaries or (iiiiv) transfer any of its property properties or assets to the Issuer Company or any other of its Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to Subsidiaries except for such encumbrances or restrictions existing under or by reason ofof any of the following:
(iA) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) the Documents and any encumbrance or restriction pursuant to an other agreement in effect at or entered into on the Issue Date, Purchase Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, provided that any amendmentsuch amendments, restatementmodifications, renewalrestatements, replacement renewals, increases, supplements, refundings, replacements or refinancing is not materially refinancings are no more restrictive restrictive, taken as a whole, with respect to such encumbrances or dividend and other payment restrictions than those contained in existence such agreements as in effect on the Issue Date as determined in good faith by the Issuer’s senior managementPurchase Date;
(B) in the case of clause (iv) above, (1) agreements or instruments that restrict in a customary non-manner the subletting, assignment provisions or transfer of any property or asset that is a lease, license, conveyance or contract and customary or similar property or asset, (2) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture or (C) provisions restricting assignment arising or subletting agreed to in the ordinary course of business not relating to Indebtedness that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any lease governing a leasehold interest of any its Restricted Subsidiaries or the ability of the Company or such Restricted Subsidiary, as the case may be, to use such property or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lienassets, in each case permitted in any manner material to be Incurred under this Indenturethe Company or any of its Restricted Subsidiaries;
(vC) any agreement or instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationIndebtedness, 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;
(viD) restrictions provisions in agreements or instruments that prohibit the payment of dividends or the making of other distributions with respect to any Capital Stock of a Restricted Subsidiary Person other than on a pro rata basis;
(E) restrictions on the transfer of assets subject to any Permitted Lien imposed by the holder of such Lien;
(F) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Agreement to any Person pending the closing of such sale;
(G) provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(H) restrictions contained in the terms of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale purchase money Indebtedness or disposition Capitalized Lease Obligations not incurred in violation of Capital Stock or assets of such Restricted Subsidiarythis Indenture; provided, that such restrictions apply solely relate only to the Capital Stock or assets of property financed with such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Indebtedness;
(viiI) customary restrictions imposed on contained in the transfer terms of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to incurred in clause (iii) or (v) of this compliance with Section 3.15(b8.2(a); provided, provided that such Refinancing agreement is not restrictions, taken as a whole, are, in the good faith judgment of the Company’s Board of Directors, no more materially more restrictive with respect to such encumbrances or and restrictions than those contained in the agreement referred to existing agreements referenced in such clause (iiiA) or (v) as determined in good faith by the Issuer’s senior managementabove;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xiJ) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xiiK) customary provisions an agreement governing Permitted Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in joint venture agreements relating to dividends clause (A) or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiiiC) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Company or any of its Restricted Subsidiaries in any material respect as determined by the Board of Directors of the Company in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementC).
Appears in 1 contract
Samples: Note Purchase Agreement (Vanguard Car Rental Group Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Equity Interests or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iib) make loans or advances to, or make guarantee any Investment inIndebtedness or other obligations of, the Issuer Company or any other Restricted Subsidiary; or
, or (iiic) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable lawthe Credit Facility or any other agreement of the Company or the Restricted Subsidiaries outstanding on the Issue Date, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in each case as in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that any such amendment, restatement, renewal, replacement or refinancing is not materially no more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive aggregate with respect to such encumbrances or restrictions than those contained in the Credit Facility or such other agreement referred to in such clause on the Issue Date; (ii) applicable law; (iii) any instrument governing Indebtedness or Equity Interests of an Acquired Person 107 acquired by the Company or any Restricted Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred by such Acquired Person in connection with, as a result of or in contemplation of such acquisition); provided, however, that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary, or the properties or assets of the Company or any Restricted Subsidiary, other than the Acquired Person; (iv) customary non-assignment provisions in leases and other contracts entered into in the ordinary course of business and consistent with past practices (including, without limitation, non-assignment provisions in agreements between the Company or any Restricted Subsidiary and the NRTC with respect to DBS services); (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business that only imposes encumbrances and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
; (xivi) restrictions on cash any agreement for the sale or other deposits imposed by customers under contracts disposition of the Equity Interests or other arrangements entered into or agreed to in the ordinary course assets of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a any Restricted Subsidiary in compliance with the covenant described under Section 3.9Subsidiary; provided, however, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those described in this clause (vi) are only applicable to such Restricted Subsidiary was subject or assets, as applicable, and any such sale or disposition is made in compliance with Section 10.18 to in agreements related to obligations referenced in the extent applicable thereto; or (vii) refinancing Indebtedness permitted under clause (iiih) above as determined in good faith by of the Issuer’s senior management or (B) such Incurrence will not materially impair definition of Permitted Indebtedness; provided, however, that the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary encumbrances and restrictions contained in the ordinary course of business not materially agreements governing such Indebtedness are no more restrictive in the aggregate than those existing on contained in the Issue Date as determined in good faith by agreements governing the Issuer’s senior managementIndebtedness being refinanced immediately prior to such refinancing.
Appears in 1 contract
Samples: Indenture (Golden Sky Systems Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary with respect to its Capital Stock or any other interest or participation in, or measured by, its profits or pay any Indebtedness Debt owed to the Issuer or any Restricted Subsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and the subordination of loans or advances made to the Issuer or any of its Restricted Subsidiaries to other Debt Incurred by the Issuer or any of its Restricted SubsidiarySubsidiaries shall not be deemed a restriction on the ability to pay any Debt or other Obligations);
(ii) make any loans or advances to, or make any Investment in, to the Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any of its Restricted Subsidiaries to other Debt Incurred by the Issuer or any of its Restricted SubsidiarySubsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(iii) sell, lease or transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
Subsidiary (bit being understood that such transfers shall not include any type of transfer described in clause (i) Section 3.15(aor (ii) shall above). However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(ia) applicable law, rule, regulation agreements or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement instruments in effect at or entered into on the Issue Date, including agreements or instruments governing Debt outstanding on the Issue Date, and any amendments, modifications, restatements, renewals, replacements increases, supplements, refundings, replacements, refinancings or refinancings extensions thereof; providedprovided that such amendments, that any amendmentmodifications, restatementrestatements, renewalrenewals, replacement increases, supplements, refundings, replacements, refinancings or refinancing is extensions are not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date restrictive, taken as a whole, as determined in good faith by the Issuer’s senior management, with respect to such dividend and other payment restrictions than those contained in the agreements or instruments governing such Debt on the Issue Date;
(ivb) customary non-assignment provisions an agreement relating to an acquisition of any contract and customary provisions restricting assignment property, so long as the encumbrances or subletting restrictions in any lease governing such agreement relate solely to the property so acquired (and are not or were not created solely in contemplation of or in connection with the acquisition thereof) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions are not materially more restrictive, taken as a leasehold interest of any Restricted Subsidiarywhole, as determined in good faith by the Issuer, with respect to such dividend and other payment restrictions than those contained in the agreement prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureextensions;
(vc) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Issuer or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the properties property or assets of the Person and its Subsidiaries, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale , and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or disposition of Capital Stock or assets of such Restricted Subsidiaryextensions thereof; provided, provided that such restrictions apply solely to the Capital Stock amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is extensions are not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) restrictive, taken as a whole, as determined in good faith by the Issuer’s senior management, with respect to such dividend and other payment restrictions than those contained in such agreements or other instruments prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions;
(ixd) customary provisions restricting subletting or assignment of any property or asset that is subject to any lease, contract, or license of the Issuer or any of its Restricted Subsidiaries or provisions in agreements that restrict the assignment or transfer of such agreement or any rights thereunder;
(e) applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(f) any restriction on the sale or other disposition of assets or property securing Debt as a result of a Permitted Lien on such assets or property;
(g) the Note Documents, the ABL Credit Facility and the other Loan Documents (as defined in the ABL Credit Facility, as in effect on the Escrow Release Date), the 2017 Senior Secured Notes Indenture and the other Note Documents (as defined in the 2017 Senior Secured Notes Indenture, as in effect on the Escrow Release Date), the 2018 Senior Secured Notes Indenture and the other Note Documents (as defined in the 2018 Senior Secured Notes Indenture, as in effect on the Escrow Release Date), and in each case any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions are not materially more restrictive, taken as a whole, as determined in good faith by the Issuer, with respect to such dividend and other payment restrictions than those contained in the Note Documents, the ABL Credit Facility and the other Loan Documents (as defined in the ABL Credit Facility), the 2017 Senior Secured Notes Indenture and the other Note Documents (as defined in the 2017 Senior Secured Notes Indenture), and the 2018 Senior Secured Notes Indenture and the other Note Documents (as defined in the 2018 Senior Secured Notes Indenture), as the case may be, on the Escrow Release Date;
(h) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(i) customary provisions limiting the disposition or distribution of assets or property in partnership agreements, limited liability company organizational materials, stockholder agreements, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets (including Equity Interests of Subsidiaries) that are the subject of such agreements;
(j) Liens permitted to be Incurred pursuant to the provisions of the covenant described incurred under this Indenture, including under Section 3.17 4.12, that limit the right of the Issuer or any person of its Restricted Subsidiaries to transfer sell or dispose of the property or assets subject to such Liens;
(xk) Purchase Money Indebtedness any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(l) customary arrangements entered into or incurred by and relating exclusively to a Receivables Subsidiary in connection with a Qualified Receivables Transaction that, in the good faith determination of the Issuer is reasonably necessary to effect such Qualified Receivables Transaction;
(m) (i) purchase money obligations for property acquired in the ordinary course of business and Capitalized (ii) Capital Lease Obligations permitted under this Indenture that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii) of the preceding paragraph of this Section 3.15(a) above on the property so acquired4.8;
(xin) restrictions on cash or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other deposits imposed by customers under contracts agreement to which the Issuer or other arrangements any Restricted Subsidiary a party entered into or agreed to in the ordinary course of business business;
(o) those arising in connection with any Hedging Obligations and/or Bank Product Obligations; and
(p) other Debt of the Issuer or any of its Restricted Subsidiaries permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.9; provided that the restrictions contained therein are not materially more restrictive restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those existing contained in this Indenture or would not materially adversely affect the Issuer’s ability to make anticipated principal and interest payments on the Issue Date Notes, in each case, as determined in good faith by the Issuer’s senior management;
(xii) customary provisions . Nothing contained in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under this Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by 4.8 shall prevent the Issuer or any of its Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementSubsidiaries from creating, incurring or suffering to exist any Permitted Lien.
Appears in 1 contract
Samples: Indenture (WillScot Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.16(a) shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethe New Secured Notes, regulation the Existing Ardagh Bonds, this Indenture, the indenture governing the New Secured Notes, any Credit Facility, the indentures governing the Existing Ardagh Bonds, the Intercreditor Agreement (or orderany Additional Intercreditor Agreement), the Senior Holdco Notes and the security documents related thereto or by other indentures or agreements governing other Debt incurred ranking equally with the Notes;
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be incurred under Credit Facilities or any guarantees thereof in accordance with Section 4.06; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother sub-clause of this Section 4.16(b));
(iv) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Parent Guarantor or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of Section 4.16(a)(iv), customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing sub-clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise enter into or cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits to the Issuer extent owned by the Company or any Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (c) make any Investment in the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
, except for (i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Effective Date and set forth on Schedule 6.08, (ii) any encumbrance or restriction set forth in any First-Lien Credit Document, any Second-Lien Note Document and any other Indebtedness of the type described in clauses, (ii) or (vii) of the definition of the term "Indebtedness" so long as determined in good faith by such encumbrances and restrictions are not materially less favorable to the Issuer’s senior management;
Holders than those under the First-Lien Credit Documents, (iviii) customary non-assignment provisions of provisions, (iv) any contract and customary provisions restricting assignment encumbrance or subletting restriction pertaining to an asset subject to a Lien to the extent set forth in any lease the security documentation governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a such Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary at the time that it becomes a Restricted Subsidiary that is not created in contemplation thereof, (vi) any encumbrance or restriction existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (iv) above; provided that the terms and conditions of any such encumbrance or restriction are not materially less favorable to the Issuer imposed Holders than those under or pursuant to the agreement being replaced or the agreement evidencing the Indebtedness refinanced, (vii) any encumbrance or restriction imposed upon a binding Restricted Subsidiary pursuant to an agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (or any Asset Sale to the extent limited to the Capital Stock or assets in question, and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) any customary encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred incurred by one or more Restricted Subsidiaries hereunder; provided that (subject to customary net worth, leverage, invested capital and other financial covenants) the provisions of such agreement permit the payment of interest and principal and mandatory repurchases pursuant to the provisions terms of this Agreement and other indebtedness that is solely an obligation of the covenant described under Section 3.17 Company; provided further that limit such agreement may contain customary covenants regarding the right merger of or sale of all or any person to transfer substantial part of the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in Subsidiary, customary restrictions on transactions with affiliates, and customary subordination provisions governing indebtedness owed to the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementCompany or any Restricted Subsidiary.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall Publishing will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends or make any other distributions distribution on or in respect of its Capital Stock to the Issuer Publishing or any other Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Publishing or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, the Issuer in Publishing or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to Publishing or any Restricted Subsidiary, except (i) any encumbrance or restriction pursuant to or in connection with the Issuer New Bank Credit Facility or the FDTH Credit Facility, each as in effect on the date such Subsidiary becomes a Restricted Subsidiary or any other Restricted Subsidiary.
agreement in effect on the date of this Indenture (b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable lawincluding the AP-91 Senior Notes), rule, regulation or order;
(ii) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary of Publishing on the date of this Indenture;
, in existence at the time such Person becomes a Restricted Subsidiary of Publishing and not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary, (iii) any encumbrance or restriction pursuant to an agreement or in effect at connection with documents existing or entered into on the Issue Date, and securing any amendments, restatements, renewals, replacements or refinancings thereof; provided, Foreign Subsidiary Indebtedness that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to than the terms of any such encumbrances or restrictions than those in existence existing on the Issue Date date of the Indenture or the date such Subsidiary becomes a Restricted Subsidiary, as determined in good faith by the Issuer’s senior management;
an officer of Publishing, (iv) customary non-assignment provisions encumbrances or restrictions entered into by Southam in connection with Indebtedness of Southam Incurred at a time when Southam is a Public Entity, (v) encumbrances or restrictions contained in the terms of any contract and Mirror Preferred, provided that such Mirror Preferred continues to quality as such under the definition thereof, (vi) customary provisions restricting subletting or assignment or subletting in of any lease governing a leasehold interest of Publishing or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
and (vvii) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to existing under any Personagreement that extends, renews, refinances or replaces the properties agreements containing the encumbrances or assets of any Person137 - 127 - restrictions in the foregoing clauses (i), (ii) and (iii) (other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and covenants in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(bAP-91 Senior Notes); provided, provided that such Refinancing agreement is not materially more restrictive with respect to the terms and conditions of any such encumbrances or restrictions are not materially less favorable to the Holders than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of agreement evidencing the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash extended, renewed, refinanced or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary of the Company, (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary of the Company or (be) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, law or any applicable rule, regulation or order;
, (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted SubsidiarySubsidiary of the Company, or any (iii) customary restriction restrictions on the ability transfers of property subject to a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case Lien permitted to be Incurred under this Indenture;
, (iv) the New Credit Agreement as in effect on the Issue Date, (v) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Company in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such Restricted Subsidiary; providedencumbrance or restriction, that by its terms, terminates on the earlier of the termination of such restrictions apply solely agreement or -93- 103 the consummation of such agreement and so long as such restriction applies only to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stockto be sold), its Subsidiaries);
(vii) customary restrictions imposed any agreement in effect on the transfer of copyrighted or patented materials;
Issue Date, (viii) an this Indenture and the Guarantees, and (ix) any agreement governing Indebtedness Incurred to Refinance that amends, extends, refinances, renews or replaces any agreement described in the Indebtedness issued, assumed or Incurred pursuant to an foregoing clauses; provided that the terms and conditions of any such agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is are not materially more restrictive less favorable to the Holders of the Securities with respect to such encumbrances or dividend and payment restrictions than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash agreement amended, extended, refinanced, renewed or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Trust shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock;
(b) pay any Indebtedness or other obligation owed to the Issuer Trust or any other Restricted Subsidiary;
(iic) make loans or advances to, or make any Investment in, to the Issuer Trust or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Trust or any other Restricted Subsidiary.
, except (bin each case) Section 3.15(a) shall not apply to for such encumbrances or restrictions existing under or by reason ofof any of the following:
(i) applicable lawthis Indenture, ruleany Guarantee, regulation or orderthe Debt Securities, the Senior Group Facilities and any other agreement in effect on the Closing Date;
(ii) this Indentureapplicable law;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest interest, or of any contract, of the Trust or any Restricted Subsidiary, or any customary restriction on relating to the ability property covered thereby and entered into in the ordinary course of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenturebusiness;
(viv) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Trust or any Restricted Subsidiary in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(viv) restrictions any encumbrance or restriction contained in contracts for sales of assets permitted by Section 6.11 with respect to a Restricted Subsidiary of the Issuer imposed assets to be sold pursuant to a binding such contract; or
(vi) any encumbrance or restriction existing under any agreement which has been entered into for that extends, renews, refinances or replaces the sale agreements containing the encumbrances or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
foregoing clauses (viii) customary restrictions imposed on the transfer of copyrighted or patented materials;
and (viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(biv); provided, provided that such Refinancing agreement is not materially more restrictive with respect to the terms and conditions of any such encumbrances or restrictions are not less favourable in any material respect to the Debtholders than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property agreement so acquired;
(xi) restrictions on cash extended, renewed, refinanced or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Issuer to:
(i1) pay dividends or make any other distributions on or in respect of its Capital Stock Equity Interests;
(2) make loans or advances to the Issuer or any other Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, Subsidiary of the Issuer or any other Restricted SubsidiaryIssuer; or
(iii3) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to Subsidiary of the Issuer, except in each case for such encumbrances or restrictions existing under or by reason of:
(ia) applicable law, rule, regulation or order;
(iib) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(ivc) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on Subsidiary of the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this IndentureIssuer;
(vd) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationIndebtedness, 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;
(vie) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those agreements existing on the Issue Date as determined to the extent and in good faith by the Issuer’s senior managementmanner such agreements are in effect on the Issue Date;
(xiif) the Credit Agreement;
(g) restrictions on the transfer of assets subject to any Lien permitted under the Indenture imposed by the holder of such Lien;
(h) restrictions imposed by any agreement to sell assets or Equity Interests permitted under the Indenture to any Person pending the closing of such sale;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to dividends or other distributions in respect of such the respective joint venture or similar entity or the securities, assets or revenues of such joint venture;
(xiiiequity interests therein) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business business; and
(j) an agreement governing Indebtedness; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are not materially more restrictive than those existing on the Issue Date provided in Section 4.7 in any material respect as determined by the Board of Directors of the Issuer in its reasonable and good faith by the Issuer’s senior managementjudgment.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist exist, or enter into any agreement with any Person that would cause to become effective effective, any consensual encumbrance or restriction of any kind, on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions distribution on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits, to the Issuer Company or any other Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make guarantee any Investment inIndebtedness or other obligations of, the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iiid) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) except any encumbrance or restriction pursuant to an agreement (i) existing under the New Revolving Credit Facility as in effect on the Issue Date relating to assets subject to a Lien created at or entered into any time thereby; (ii) with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings in existence at the time such Person becomes a Restricted Subsidiary (but not created in contemplation thereof); provided, however, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or and restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is are not applicable to the Company or any Personother Restricted Subsidiary, or the properties or assets of the Company or any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained customary non-assignment provisions in leases entered into in the agreement referred to in such clause ordinary course of business and consistent with past practices; (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xiv) Purchase Money Indebtedness for property acquired in the ordinary course of business that only imposes encumbrances and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
; (xiv) restrictions on cash any agreement for the sale or other deposits imposed by customers under contracts disposition of the Capital Stock or other arrangements entered into or agreed to in the ordinary course assets of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a any Restricted Subsidiary in compliance with the covenant described under Section 3.9Subsidiary; provided, however, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those described in this clause (v) are only applicable to such Restricted Subsidiary was subject or assets, as applicable, and any such sale or disposition is made in compliance with Section 10.15 to the extent applicable thereto; and (vi) any encumbrance or restriction existing under any agreement that Refinances the agreements containing the encumbrance or restrictions in agreements related to obligations referenced in the foregoing clauses (i) and (ii); provided, however, that the terms and conditions of any such restrictions permitted under this clause (iiivi) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will are not materially impair less favorable to the Issuer’s ability to make payments under holders of the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive Securities than those existing on under or pursuant to the Issue Date as determined in good faith by agreement evidencing the Issuer’s senior managementIndebtedness Refinanced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, The Indenture provides that the Issuer shall Company may not, directly or indirectly, and shall may not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective enter into any agreement with any Person that would cause any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits owned by, or pay any Indebtedness owed to to, the Issuer Company or any other a Restricted Subsidiary;
, (iib) make any loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iiic) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
Subsidiary except, in each case, for (i) applicable lawrestrictions imposed by the Notes, rulethe Indenture the Subsidiary Guarantees and the Collateral Documents, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions restricting subletting or assignment of any contract and customary provisions restricting assignment lease entered into in the ordinary course of business, consistent with industry practices, (iii) restrictions imposed by applicable gaming laws or subletting in any lease governing a leasehold interest of applicable Gaming Authority, (iv) restrictions under any agreement relating to any property, assets, or business acquired by the Company or its Restricted Subsidiary, or any customary restriction on which restrictions existed at the ability time of a Restricted Subsidiary to dividendacquisition, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, were not put in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or place in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is of such acquisition and are not applicable to any Person, or the properties or assets of any Person, other than the Person acquired or to any property, assets or business other than the properties or property, assets and business of the Person so acquired;
, (v) any such contractual encumbrance in existence as of the Issue Date or imposed by or in connection with the incurrence of any Permitted FF&E Financing, Capitalized Lease Obligations or Non-Recourse Indebtedness permitted pursuant to clause (e) of the covenant described under "Limitation on Indebtedness," provided such encumbrance does not have the effect of restricting the payment of dividends to the Company or any Restricted Subsidiary or the payment of Indebtedness owed to the Company or any Restricted Subsidiary or reducing the amount of any such dividends or payments, (vi) any restrictions with respect to Capital Stock or assets, respectively, of a Restricted Subsidiary of the Issuer Company imposed pursuant to a binding an agreement which that has been entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary replacements of restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause clauses (iiii) or through (vvi) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially are no more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbeing replaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall not, and The Company shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on to the Company or in any Restricted Subsidiary with respect of to its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits or pay any Indebtedness Debt owed to the Issuer Company or any Restricted Subsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Debt Incurred by the Company or any of its Restricted Subsidiary;Subsidiaries shall not be deemed a restriction on the ability to pay any Debt or other Obligations);
(ii) make any loans or advances to, or make any Investment in, to the Issuer Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Debt Incurred by the Company or any of its Restricted Subsidiary; Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(iii) sell, lease or transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary (bit being understood that such transfers shall not include any type of transfer described in clause (i) Section 3.15(aor (ii) above). However, the preceding restrictions shall not apply to encumbrances or restrictions existing under or by reason of:
(ia) applicable law, rule, regulation agreements or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement instruments in effect at or entered into on the Original Issue Date, including agreements or instruments governing Debt outstanding on the Original Issue Date, and any amendments, modifications, restatements, renewals, replacements increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is extensions are not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date restrictive, taken as a whole, as determined in good faith by the Issuer’s senior management;Company, with respect to such dividend and other payment restrictions than those contained in the agreements or instruments governing such Debt on the Original Issue Date;
(ivb) customary non-assignment provisions an agreement relating to an acquisition of any contract and customary provisions restricting assignment property, so long as the encumbrances or subletting restrictions in any lease governing such agreement relate solely to the property so acquired (and are not or were not created solely in contemplation of or in connection with the acquisition thereof) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions are not materially more restrictive, taken as a leasehold interest whole, as determined in good faith by the Company, with respect to such dividend and other payment restrictions than those contained in the agreement prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions;
(c) any agreement or other instrument of any Restricted Subsidiary, a Person acquired by the Company or any customary restriction on of its Restricted Subsidiaries in existence at the ability time of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, such acquisition (but not created in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the properties property or assets of the Person and its Subsidiaries, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale , and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, extensions thereof; provided that such restrictions apply solely to the Capital Stock amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is extensions are not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) restrictive, taken as a whole, as determined in good faith by the Issuer’s senior management;Company, with respect to such dividend and other payment restrictions than those contained in such agreements or other instruments prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions;
(ixd) customary provisions restricting subletting or assignment of any property or asset that is subject to any lease, contract, or license of the Company or any of its Restricted Subsidiaries or provisions in agreements that restrict the assignment or transfer of such agreement or any rights thereunder;
(e) applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(f) any restriction on the sale or other disposition of assets or property securing Debt as a result of a Permitted Lien on such assets or property;
(g) the Note Documents, the ABL Credit Facility or the other Loan Documents (as defined in the ABL Credit Facility, as in effect on the Original Issue Date), the Existing Notes Documents, and in each case any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions are not materially more restrictive, taken as a whole, as determined in good faith by the Company, with respect to such dividend and other payment restrictions than those contained in the Note Documents, the ABL Credit Facility or the other Loan Documents (as defined in the ABL Credit Facility, as in effect on the Original Issue Date), and the Existing Notes Documents, as the case may be, on the Original Issue Date;
(h) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(i) customary provisions limiting the disposition or distribution of assets or property in partnership agreements, limited liability company organizational materials, stockholder agreements, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets (including Equity Interests of Subsidiaries) that are the subject of such agreements;
(j) Liens permitted to be Incurred pursuant to the provisions of the covenant described incurred under this Indenture, including under Section 3.17 4.12, that limit the right of the Company or any person of its Restricted Subsidiaries to transfer sell or dispose of the property or assets subject to such Liens;Liens;
(xk) Purchase Money Indebtedness any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(l) customary arrangements entered into or incurred by and relating exclusively to a Receivables Subsidiary in connection with a Qualified Receivables Transaction that, in the good faith determination of the Company, is reasonably necessary to effect such Qualified Receivables Transaction;
(i) purchase money obligations for property acquired in the ordinary course of business and Capitalized (ii) Capital Lease Obligations permitted under this Indenture that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii) of the preceding paragraph of this Section 3.15(a) above on the property so acquired;4.8;
(xin) restrictions on cash or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other deposits imposed by customers under contracts agreement to which the Company or other arrangements any Restricted Subsidiary a party entered into or agreed to in the ordinary course of business business;
(o) those arising in connection with any Hedging Obligations and/or Bank Product Obligations; and
(p) those arising under other Debt of the Company or any of its Restricted Subsidiaries permitted to be Incurred subsequent to the Original Issue Date pursuant to Section 4.9; provided that the restrictions contained therein are not materially more restrictive restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those existing contained in this Indenture or would not materially adversely affect the Company’s ability to make anticipated principal and interest payments on the Issue Date Notes, in each case, as determined in good faith by the Issuer’s senior management;
(xii) customary provisions Company. Nothing contained in joint venture agreements relating to dividends or other distributions in respect of such joint venture or this Section 4.8 shall prevent the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any of its Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementSubsidiaries from creating, incurring or suffering to exist any Permitted Lien or Permitted Collateral Lien.
Appears in 1 contract
Samples: Indenture (Target Hospitality Corp.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:
(i1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to owned by the Issuer Company or any other a Restricted Subsidiary or Subsidiary;
(2) pay any Indebtedness owed to the Issuer Company or any other Restricted SubsidiarySubsidiary of the Company;
(ii3) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; orSubsidiary of the Company;
(iii4) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.Subsidiary of the Company (other than any customary restriction on transfers of property subject to a Permitted Lien (other than a Lien on cash not constituting proceeds of non-cash property subject to a Permitted Lien) which could not materially adversely affect the Company's ability to satisfy its obligations hereunder); or
(b5) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company; except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable law, rule, regulation or order;
(ii) this Indenture;
(iiiB) any encumbrance agreement or restriction pursuant to an agreement in effect at other instrument of a person acquired by the Company or entered into on any Restricted Subsidiary of the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those Company in existence on at the Issue Date as determined time of such acquisition (but not created in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Personperson, or the properties or assets of any Personperson, other than the Person person, or the properties property or assets of the Person person, so acquired;
(viC) restrictions any encumbrance or restriction in any agreement:
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the subletting, assignment or transfer of any lease, license, conveyance or contract or similar property or asset;
(2) contained in any mortgage, pledge or other security agreement securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property subject thereto; or
(3) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(D) Purchase Money Indebtedness permitted under Section 4.06;
(E) with respect to a Restricted Subsidiary (or any of the Issuer its property or assets) imposed pursuant to a binding an agreement which has been entered into for the direct or indirect sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in or the case property or assets that are subject to such restriction) pending the closing of Capital Stock, its Subsidiaries)such sale or disposition;
(viiF) customary restrictions imposed on the transfer of copyrighted property or patented materialsassets required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses;
(viiiG) with respect to a Receivables Subsidiary, an agreement governing relating to Indebtedness Incurred to Refinance the Indebtedness issued, assumed of a Receivable Subsidiary which is permitted under Section 4.06 above or Incurred pursuant to an agreement referred relating to a Permitted Receivables Financing by a Receivables Subsidiary;
(H) any encumbrance or restriction in any agreement existing on the Issue Date to the extent and in the manner such encumbrance or restriction is in effect on the Issue Date by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(I) existing under Senior Indebtedness otherwise permitted to be incurred pursuant to Section 4.06 that limits the right of the debtor to dispose of assets securing such Indebtedness;
(J) any encumbrance or restriction pursuant to any agreement that extends, refinances, renews or replaces any agreement described in clause (iiiB) or (v) of this Section 3.15(b); providedabove, that such Refinancing agreement which is not materially more restrictive with respect or less favorable to such encumbrances or restrictions the holders of Notes than those contained in existing under the agreement referred to in such clause being extended, refinanced or renewed (iii) or (v) as determined in good faith by the Issuer’s senior management;Company); and
(ixK) Liens permitted to be Incurred pursuant to the provisions an agreement or instrument relating to Indebtedness permitted by clause (18) of the covenant described under Section 3.17 definition of "Permitted Indebtedness" (a "Refinancing Agreement"); provided, however, that limit the right encumbrances and restrictions contained in any such Refinancing Agreement or amendment are no less favorable to the holders of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired Notes taken as a whole than encumbrances and restrictions contained in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause initial agreement or agreements to which such Refinancing Agreement or amendment relates (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect Board of such joint venture or the securitiesDirectors, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementwhose determination shall be conclusive).
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary, (c) make loans or advances to the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary (b) Section 3.15(a) shall other than any customary restriction on transfers of property subject to a Lien permitted under this Indenture (other than a Lien on cash not apply constituting proceeds of non-cash property subject to a Lien permitted under this Indenture)), except for such encumbrances or restrictions existing under or by reason of:
of (i) the mandatory provisions of general applicability of applicable lawlaw or governmental regulation, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting any licensing agreement entered into by the Company or any of the Restricted Subsidiaries in the ordinary course of business or any lease governing a leasehold interest of the Company or any Restricted Subsidiary, (iii) any agreement or other instrument of a person acquired by the Company or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Personperson, or the properties or assets of any Personperson, other than the Person person, or the properties property or assets (including subsequently acquired property or assets to the extent subject thereto) of the Person person, so acquired;
, (viiv) restrictions with respect any encumbrance or restriction in the Credit Facility or any other agreement, in each case, as in effect on the Issue Date and listed in Schedule 1015 hereto, or otherwise modified from time to a Restricted Subsidiary time; provided that any such modification is no less favorable to the holders of Securities (as determined by the Board of Directors of the Issuer imposed Company) than the applicable provision as in effect on the Issue Date and (v) any encumbrance or restriction pursuant to a binding any agreement which has been entered into for the sale that extends, restructures, refinances, renews, refunds or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an replaces any agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to described in clause (ii), (iii) or (viv) of this Section 3.15(b); provided1015, that such Refinancing agreement which is not materially more restrictive with respect no less favorable to such encumbrances or restrictions than those contained in the agreement referred to in such clause holders of Securities (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions Board of Directors of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xCompany) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer agreement being extended, restructured, refinanced, renewed, refunded or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.16(a) shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethe Existing Ardagh Bonds, regulation the New Unsecured Notes, this Indenture, any Credit Facility, the indentures governing the Existing Ardagh Bonds, the Intercreditor Agreement (or orderany Additional Intercreditor Agreement), the Senior PIK Notes and the security documents related thereto or by other indentures or agreements governing other Debt Incurred ranking equally with the Notes;
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with Section 4.06; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother sub-clause of this Section 4.16(b));
(iv) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Parent Guarantor or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of Section 4.16(a)(iv), customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions Incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing sub-clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary, (c) make Investments in the Company or any other Restricted Subsidiary, (d) transfer any of its properties or assets to the Company or any other Restricted Subsidiary or pay (e) guarantee any Indebtedness owed to of the Issuer Company or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments(ii) applicable law, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iviii) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, (iv) any agreement or other instrument of a Person acquired by the Company or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (v) the refinancing of Indebtedness incurred under the agreements existing on the Issue Date, so long as such encumbrances or restrictions are no less favorable in any material respect to the Company or any Restricted Subsidiary than those contained in the respective agreement as in effect on the Issue Date, (vi) restrictions contained in any security agreement (including a capital lease obligation) securing Indebtedness of the Company or a Restricted Subsidiary otherwise permitted under this Indenture, (vii) customary nonassignment provisions entered into in the ordinary course of business in leases and other agreements, (viii) any restriction with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been Company entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold made in accordance with Section 1015, (ix) pursuant to this Indenture and the Notes or (x) any agreement or instrument governing or relating to Indebtedness under any senior commercial bank facility (each, a "Bank Facility") if such encumbrance or restriction applies only to (A) amounts which at any point in time (other than during such periods as are described in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in following clause (iiiB)) (1) exceed amounts due and payable (or which are to become due and payable within 30 days) in respect of the Notes or this Indenture for interest, premium and principal or (v2) if paid, would result in an event described in the following clause (B) of this Section 3.15(b); providedsentence, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) during the pendency of any event that causes, permits or, after notice or lapse of time, would cause or permit the holder(s) of Indebtedness governed by such Incurrence will Bank Facility to declare such Indebtedness to be immediately due and payable or to require cash collateralization or cash cover for such Indebtedness for so long as such cash collateralization or cash cover has not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbeen provided.
Appears in 1 contract
Samples: Indenture (Dti Holdings Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall not cause or nor will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (ii) make loans or advances to, or make issue any Investment inguaranty for the benefit of, the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iii) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
(iA) applicable lawthe Credit Agreement, rulethe 2007 Indenture and the 2008 Indenture, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in each case, as in effect at or entered into on the Issue Date, and any amendments, restatementsmodifications, renewals, refundings, replacements or refinancings thereof; providedprovided that such amendments, that modifications, renewals, refundings, replacements or refinancings are no more restrictive in the aggregate with respect to such dividend and other payment restrictions than those contained in such agreements (or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior managementrefinancing;
(ivB) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureapplicable law;
(vC) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness not Incurred was incurred in connection with, with or in anticipation or contemplation ofof such acquisition); provided, the relevant acquisitionhowever, merger or consolidation, which that no such 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 acquiredAcquired Person;
(viD) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been customary non-assignment, subletting or net worth provisions in leases or other agreements entered into for the sale or disposition ordinary course of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)business;
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xE) Purchase Money Indebtedness Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above only on the property so acquired;
(xiF) restrictions on cash an agreement for the sale or disposition of assets or the Capital Stock of a Restricted Subsidiary; provided, however, that such restriction or encumbrance is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted by Section 4.16, provided further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 270 days after such execution and delivery (other deposits imposed by customers under contracts than any such restriction or other arrangements entered into or agreed to encumbrance contained in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementBelgium Purchase Agreement);
(xiiG) customary provisions Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in joint venture the agreements relating governing such Refinancing Indebtedness are no more restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venturerefinancing;
(xiiiH) this Indenture, the Notes, and the Collateral Agreements; and
(I) encumbrances and restrictions imposed by amendments, restatements, renewals, replacements or refinancings of the contracts, instruments or obligations referred to in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that clauses (A) such restrictions are not materially more restrictive with respect to through (H) above; provided that such encumbrances and restrictions are, in the good faith judgment of the Company's Board of Directors, no more restrictive, in any material respect, than those contained in such Restricted Subsidiary was subject contracts, instruments or obligations immediately prior to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management such amendment, restatement, renewal, replacement or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementrefinancing.
Appears in 1 contract
Samples: Indenture (Pahc Holdings Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Parent will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(2) pay any Indebtedness owed to the Issuer Parent or any other Restricted Subsidiary;
(ii3) make loans or advances to, or make any Investment in, to the Issuer Parent or any other Restricted Subsidiary; or
(iii4) transfer any of its property properties or assets to the Issuer Parent or any other Restricted Subsidiary.
(b) The provisions described in Section 3.15(a4.08(a) shall hereof will not apply to to:
(1) encumbrances or and restrictions existing under or by reason of:
(i) applicable lawof the Notes, rulethe Indenture, regulation the Guarantees, the Credit Agreement or orderany Non-Recourse Financing outstanding as of the Issue Date;
(ii2) this Indentureencumbrances and restrictions imposed by provisions in agreements relating to Non-Recourse Financing that is permitted by the Indenture to be incurred;
(iii3) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09 hereof if (x) Parent’s Board of Directors or senior management determines that such encumbrance or restriction will not materially adversely affect the Parent’s ability to make principal and interest payments on the Notes as and when they fall due; or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness;
(4) any agreement or instrument in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive ;
(5) with respect to restrictions or encumbrances referred to in clause (a)(4) above, encumbrances and restrictions: (i) that restrict in a customary manner the subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Parent or any Restricted Subsidiary is a party; and (ii) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(6) encumbrances or restrictions than those contained in existence on the Issue Date as determined in good faith any agreement or other instrument of (i) a Person acquired by the Issuer’s senior management;
Parent or any Restricted Subsidiary in effect at the time of such acquisition or (ivii) customary non-assignment provisions of any contract and customary provisions restricting assignment an Unrestricted Subsidiary, at the time it is designated or subletting in any lease governing deemed to become a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationcase, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person so acquiredPerson, and was not put in place in contemplation of such event;
(vi7) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely permitted by Section 4.10 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Parent’s Subsidiaries by another Person;
(vii) customary 8) encumbrances or restrictions imposed on the transfer existing under or by reason of copyrighted applicable law, regulation or patented materialssimilar restriction or by governmental licenses, concessions, franchises or permits;
(viii9) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii10) customary provisions in joint venture agreements and other similar agreements or arrangements relating to dividends or other distributions in respect of such joint venture or entered into in the securities, assets or revenues ordinary course of such joint venturebusiness;
(xiii11) in the case of clause (a)(4) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations;
(12) any encumbrance or restriction arising by reason of customary non-assignment provisions;
(13) customary restrictions on fiduciary cash held by the Parent’s Restricted Subsidiaries;
(14) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements;
(15) customary restrictions on the transfer of non-cash assets contained in power purchase agreements and similar agreements;
(16) restrictions on Non-Recourse Subsidiaries in Indebtedness Incurred documentation evidencing Project Obligations;
(17) customary provisions in agreements governing Hedging Obligations;
(18) customary provisions contained in agreements entered into in the ordinary course of business or encumbrances or restrictions existing under or by reason of any Lien permitted to be incurred pursuant to Section 4.12;
(19) encumbrances or restrictions contained in the charter, partnership agreement or limited liability company agreement or other governing documents of a Restricted Subsidiary relating to tax equity or similar financings; or
(20) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, renewal, replacement or refinancing of Indebtedness incurred pursuant to, or that otherwise extends, renews, refunds, increases, supplements, modifies, refinances or replaces, an agreement, contract, obligation or instrument referred to in compliance with the covenant described under clauses (1), (2), (4), (6) or (7) of this Section 3.94.08(b) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1), (2), (4), (6) or (7) of this Section 4.08(b); provided, however, that (A) such the encumbrances and restrictions are not materially more restrictive with respect to such Restricted Subsidiary contained in any such agreement or instrument are not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions than those contained in such Restricted Subsidiary was subject agreements and instruments referred to in agreements related to obligations referenced in clause clauses (iii1), (2), (4), (6) above or (7) of this Section 4.08(b) (as determined in good faith by the Issuer’s senior management of the Parent). For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Equity in receiving dividends or (B) such Incurrence distributions prior to dividends or distributions being paid on common stock will not materially impair be deemed a restriction on the Issuer’s ability to make payments under distributions on Capital Stock and (2) the Notes when due as determined in good faith subordination of loans or advances made to the Parent or a Restricted Subsidiary to other Indebtedness incurred by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Parent or any such Restricted Subsidiary in the ordinary course of business will not materially more restrictive than those existing be deemed a restriction on the Issue Date as determined in good faith by the Issuer’s senior managementability to make loans or advances.
Appears in 1 contract
Samples: Indenture (TerraForm Power, Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. 148
(a) Except as provided in clause (b) below, the Issuer shall Each Credit Party will not, and shall will not cause or permit any other member of its the Restricted Subsidiaries Group to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any member of the Restricted Subsidiary Group to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or pay any Indebtedness owed to the Issuer participation in, or any other Restricted Subsidiarymeasured by, its profits;
(ii) pay any Debt owed to any other member of the Restricted Group;
(iii) make loans or advances to, or make any Investment in, the Issuer or to any other member of the Restricted SubsidiaryGroup; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other member of the Restricted SubsidiaryGroup, provided that (A) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (B) the subordination of (including the application of any standstill requirements to) loans or advances made to any member of the Restricted Group to other Debt Incurred by such member of the Restricted Group shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 3.15(a6.10(a) shall above will not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable law, rule, regulation or orderencumbrances and restrictions imposed by the Credit Documents;
(ii) encumbrances or restrictions contained in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this IndentureSection 6.10(b)) listed on Schedule 7;
(iii) encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any encumbrance guarantee thereof in accordance with Section 6.1(b), provided that in the case of any such encumbrances or restriction pursuant to an agreement in effect at restrictions imposed under any Credit Facilities, such encumbrances or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is restrictions are not materially more restrictive with respect to such encumbrances or restrictions taken as a whole than those in existence on imposed by this Agreement as of the Issue Date as determined in good faith by the Issuer’s senior managementClosing Date;
(iv) with respect to restrictions or encumbrances referred to in Section 6.10(a)(iv) above, encumbrances and restrictions: (A) that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract properties or assets that are subject to a lease, license, conveyance or other similar agreement to which any member of the Restricted Group is a party or (B) contained in operating leases for real property and customary provisions restricting assignment or subletting in any lease governing a leasehold interest the transfer of any Restricted Subsidiary, or any customary restriction on such real property upon the ability occurrence and during the continuance of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, default in each case permitted to be Incurred under this Indenturethe payment of rent;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person or relating to assets acquired by any member of the Restricted Group in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely permitted by Section 6.6 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Parent’s Subsidiaries by another Person;
(vii) customary encumbrances or restrictions imposed on the transfer of copyrighted by applicable law or patented materialsregulation or by governmental licenses, concessions, franchises or permits;
(viii) an agreement governing Indebtedness Incurred to Refinance encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the Indebtedness issuedordinary course of business;
(ix) encumbrances or restrictions in customary provisions in joint venture and similar agreements entered into in good faith, assumed provided that (A) the encumbrance or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement restriction is not materially more restrictive with respect disadvantageous to such encumbrances or restrictions the Credit Parties than those contained is customary in the agreement referred to in such clause comparable agreements (iii) or (v) as determined in good faith by Borrower) and (B) Borrower determines in good faith that any such encumbrance or restriction will not materially affect the Issuer’s senior managementability of Borrower or any Guarantor to make any principal or interest payments on the Loans;
(x) in the case of Section 6.10(a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business;
(xi) any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements entered into in the ordinary course of business;
(xii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clauses (i), (ii), (iii), (v), (ix) Liens or (x) of this Section 6.10(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement, provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Credit Parties taken as a whole than the encumbrances and restrictions contained in such Initial Agreement (as determined in good faith by Borrower);
(xiii) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Debt permitted to be Incurred pursuant to the provisions of Section 6.1 if either (A) the covenant described under Section 3.17 that limit encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the right of any person to transfer Credit Parties than the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired encumbrances and restrictions contained in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause Initial Agreements (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by Borrower) or (B) such encumbrance or restriction is
(I) Borrower determines that such encumbrance or restriction will not materially affect Borrower’s ability to make principal, fee or interest payments on the Issuer’s senior managementLoans or Commitments as and when they come due or (II) such encumbrance or restriction applies only if a default occurs relating to such Debt;
(xiixiv) customary provisions any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in joint venture agreements relating to dividends Sections 6.10(a) or other distributions 6.10(b)(xiii), provided that such amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in respect the good faith judgment of such joint venture or the securitiesBorrower’s Board of Directors, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially no more restrictive (taken as a whole) with respect to such encumbrances and or restrictions in any material respect than those contained in the encumbrances or restrictions prior to such Restricted Subsidiary was subject amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or refinancing; or
(xv) with respect to restrictions or encumbrances referred to in agreements related to obligations referenced in clause (iiiSection 6.10(a)(iv) above as determined in good faith above, encumbrances or restrictions existing by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments reason of any Lien permitted under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementSection 6.5.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Nord Anglia Education, Inc.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any of its Restricted Subsidiary to:
Subsidiaries to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, (b) pay any Debt owed to the Issuer Company or any other Restricted Subsidiary, (c) make loans or advances to the Company or any other Restricted Subsidiary or pay 87 77
(d) transfer any Indebtedness owed of its properties or assets to the Issuer Company or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to except for such encumbrances or restrictions existing under or by reason ofof any of the following:
(i) applicable law, rule, regulation or order;the Credit Facility and any agreement in effect on the Closing Date and listed on a schedule attached to this Indenture.
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, the Company or any customary restriction on of its Restricted Subsidiaries.
(iii) the ability refinancing or successive refinancings of Debt referred to in clause (i) or (iv), so long as such encumbrances or restrictions are no less favorable to the Company or any of its Restricted Subsidiaries than those contained in such original agreement.
(iv) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, Subsidiaries in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;.
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) any agreement providing for the incurrence of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred Debt by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, 1009 provided that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the becomes a Subsidiary Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementGuarantor.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or allow to become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or make payments on any Indebtedness owed, to the Issuer Company or any other Restricted Subsidiary, (b) to make loans or advances to the Company or any other Restricted Subsidiary or pay (c) to transfer any Indebtedness owed of its Property to the Issuer Company or any other Restricted Subsidiary;
Subsidiary (ii) make loans or advances toany such restrictions being collectively referred to herein as a "Payment Restriction"), or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting subletting or assignment or subletting in of any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on restrictions in licenses relating to the ability Property covered thereby and entered into in the ordinary course of a Restricted Subsidiary to dividendbusiness, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vii) any instrument governing Acquired Indebtedness not Incurred in connection with, of a Person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any other Person, other than the Person Person, or the properties or assets Property of the Person Person, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets , provided that such Indebtedness was not incurred in anticipation of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock acquisition or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) the Bank Credit Facilities as in effect on the date of this Section 3.15(b); providedIndenture or any agreement that amends, modifies, supplements, restates, extends, renews or refinances the Bank Credit Facilities, provided that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right terms and conditions of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions Payment Restriction thereunder are not materially more restrictive with respect less favorable to such encumbrances and restrictions the Holders of the Securities than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due Bank Credit Facilities as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing effect on the Issue Date as determined in good faith by the Issuer’s senior managementdate of this Indenture.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise enter into or cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits to the Issuer extent owned by the Company or any Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (c) make any Investment in the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
, except for (b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:in each case except as otherwise noted in the following clause (ii))
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into existence on the Issue Date, (ii) any encumbrance or restriction existing under agreements relating to an Investment in an ISP (which in the case of clauses (a) and any amendments(b) shall not be permitted in the case of ISPs that are Restricted Subsidiaries) to the extent consistent with past practice, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iviii) customary non-assignment provisions of provisions, (iv) any contract and customary provisions restricting assignment encumbrances or subletting restrictions pertaining to an asset subject to a Lien to the extent set forth in any lease the security documentation governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a such Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary at the time that it becomes a Restricted Subsidiary that is not created in contemplation 112 -104- thereof, (vi) any encumbrance or restriction existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (v) above; provided that the terms and conditions of any such encumbrance or restriction are not materially less favorable to the Issuer imposed holders of Notes than those under or pursuant to the agreement being replaced or the agreement evidencing the Indebtedness refinanced, (vii) any encumbrance or restriction imposed upon a binding Restricted Subsidiary pursuant to an agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (or any Asset Sale to the extent limited to the Capital Stock or assets in question and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) any customary encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness Incurred to Refinance contained in any Permitted Credit Facility; provided that the Indebtedness issued, assumed or Incurred provisions of such agreement permit the payment of interest and principal and mandatory repurchases pursuant to an agreement referred to in clause (iii) or (v) the terms of this Section 3.15(b); Indenture and the Notes and other Indebtedness that is solely an obligation of the Company, but, provided, further, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances may nevertheless contain customary net worth, leverage, invested capital and other financial covenants, customary covenants regarding the merger of or restrictions than those contained in the agreement referred to in such clause (iii) sale of all or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions any substantial part of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in Subsidiary, customary restrictions on transactions with affiliates, and customary subordination provisions governing Indebtedness owed to the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementCompany or any Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Verio Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or allow to become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) to pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or make payments on any Indebtedness owed, to the Issuer Company or any other Restricted Subsidiary, (b) to make loans or advances to the Company or any other Restricted Subsidiary or pay (c) to transfer any Indebtedness owed of its Property to the Issuer Company or any other Restricted Subsidiary;
Subsidiary (ii) make loans or advances toany such restrictions being collectively referred to herein as a "Payment Restriction"), or make except in any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to such case for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation this Indenture or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an other agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions date of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiarythis Indenture, or (ii) any customary restriction on the ability agreement, instrument or charter of or in respect of a Restricted Subsidiary entered into prior to dividend, distribute or otherwise transfer any asset the date on which secures Indebtedness secured by such Restricted Subsidiary became a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness Restricted Subsidiary and outstanding on such date and not Incurred entered into in connection with, with or in anticipation or contemplation ofof becoming a Restricted Subsidiary, the relevant acquisition, merger or consolidation, which provided such consensual encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of Properties subsequently acquired by such Restricted Subsidiary; , or (iii) pursuant to an agreement effecting a modification, renewal, refinancing, replacement or extension of any agreement, instrument or charter (other than this Indenture) referred to in clause (i) or (ii) above, provided, however, that the provisions relating to such restrictions apply solely encumbrance or restriction are not materially less favorable to the Capital Stock Holders of the Securities than those under or assets of such Restricted Subsidiary being sold pursuant to the agreement, instrument or charter so modified, renewed, refinanced, replaced or extended, or (and in the case of Capital Stock, its Subsidiaries);
(viiiv) customary restrictions imposed on provisions restricting the subletting or assignment of any lease or the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) provisions in agreements that restrict the assignment of this Section 3.15(b); providedsuch agreements or rights thereunder, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (vvi) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right sale or other disposition of any person to transfer the assets Properties subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementLien securing Indebtedness.
Appears in 1 contract
Samples: Indenture (Willcox & Gibbs Inc /De)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create create, assume or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) to pay dividends or make any other distributions to or on behalf of, or in respect of its Capital Stock to the Issuer pay any obligation to or any other Restricted Subsidiary on behalf of, or otherwise to transfer assets or property to or on behalf of, or make or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, to or make any Investment inon behalf of, the Issuer Company or any other Restricted Subsidiary; or
, except (iiia) transfer any of its property restrictions imposed by the Notes or assets to the Issuer or any other Restricted Subsidiary.
this Indenture, (b) Section 3.15(arestrictions imposed by other Indebtedness of the Company (which may also be guaranteed by the Guarantors) shall not apply to encumbrances ranking pari passu with the Notes or the Guarantees, as applicable, provided such restrictions existing under or are no more restrictive than those imposed by reason of:
this Indenture and the Notes, (ic) restrictions imposed by applicable law, rule, regulation or order;
(iid) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into existing restrictions under Indebtedness outstanding on the Issue Date, and (e) restrictions pursuant to a Credit Agreement or any amendmentsamendment thereto, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement Refinancing Indebtedness in respect thereof (provided any restrictions or refinancing is not materially requirements of any such amendment or Refinancing Indebtedness are no more restrictive with respect to such encumbrances or restrictions than those in existence on imposed by such Credit Agreement as of the first date after the Issue Date as determined that such Credit Agreement is in good faith place), (f) restrictions under any Acquired Indebtedness not incurred in violation of this Indenture or any agreement relating to any Person, property, asset, or business acquired by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment Company or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, restrictions in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness existed at the time of acquisition, were not Incurred put in place in connection with, with or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is of such acquisition and are not applicable to any Person, property, asset or the properties or assets of any Person, business other than the Person Person, property, asset or the properties or assets of the Person so business acquired;
, (vig) restrictions solely with respect to a Restricted Subsidiary of the Issuer Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock all or substantially all of the Equity Interests or assets of such Restricted Subsidiary; provided, that provided such restrictions apply solely to the Capital Stock Equity Interests or assets of such Restricted Subsidiary which are being sold sold, (and h) restrictions on transfer contained in Purchase Money Indebtedness incurred pursuant to paragraph (f) of the case definition of Capital Stock, its Subsidiaries);
(vii) customary "Permitted Indebtedness" provided such restrictions imposed on relate only to the transfer of copyrighted the property acquired with the proceeds or patented materials;
otherwise secured by such Purchase Money Indebtedness, and (viiii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred in connection with and pursuant to an agreement referred permitted Refinancings, replacements or restrictions imposed pursuant to in clause clauses (iiia), (b), (d), (e), (f) or (vh) of this Section 3.15(b); provided, 4.12 that such Refinancing agreement is are not materially more restrictive with respect to such encumbrances or restrictions than those contained being replaced and do not apply to any other person or assets than those that would have been covered by the restrictions in the agreement referred to in such clause Indebtedness so refinanced. Notwithstanding the foregoing, neither (iiia) customary provisions restricting subletting or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right assignment of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired lease or other contract entered into in the ordinary course of business business, consistent with industry practice, nor (b) Liens permitted under the terms of this Indenture on assets securing indebtedness under a Credit Agreement or Purchase Money Indebtedness incurred in accordance with Section 4.10 hereof shall in and Capitalized Lease Obligations that impose restrictions of themselves be considered a restriction on the ability of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a applicable Restricted Subsidiary in compliance with to transfer such agreement or assets, as the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementcase may be.
Appears in 1 contract
Samples: Indenture (PPC Publishing Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall notNeither FelCor LP nor FelCor shall, and neither FelCor LP nor FelCor shall not cause or permit any of its their respective Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions permitted by applicable law on or in respect of its any Capital Stock to the Issuer of such Restricted Subsidiary owned by FelCor LP or FelCor or any other of their respective Restricted Subsidiary or Subsidiaries,
(ii) pay any Indebtedness owed to the Issuer FelCor LP, FelCor or any other Restricted Subsidiary;,
(iiiii) make loans or advances toto FelCor LP, or make any Investment in, the Issuer FelCor or any other Restricted Subsidiary; , or
(iiiiv) transfer any of its property or assets to the Issuer FelCor LP, FelCor or any other Restricted Subsidiary.. The foregoing provisions shall not restrict any encumbrances or restrictions:
(b1) Section 3.15(a) shall not apply existing on the Closing Date as set forth in this Indenture, the Line of Credit, the indenture governing the Existing Senior Secured Notes or any other agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(i) of applicable law, rule, regulation or order;
(ii3) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive existing with respect to any Person or the property or assets of such encumbrances Person acquired by FelCor LP, FelCor or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on existing at the ability time of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, such acquisition and not incurred in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the such Person or the properties property or assets of the such Person so acquired;
(vi4) restrictions in the case of clause (iv) of the first paragraph of this Section 4.05,
(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 FelCor LP, FelCor or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of FelCor LP, FelCor or any Restricted Subsidiary in any manner material to FelCor LP, FelCor and their respective Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary of the Issuer and imposed pursuant to a binding an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold or
(and 6) contained in the case terms of Capital Stock, its Subsidiaries);any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(viiA) customary restrictions imposed on the transfer of copyrighted encumbrance or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement restriction is not materially more restrictive with respect disadvantageous to such encumbrances or restrictions the Holders of the Notes than those contained is customary in the agreement referred to in such clause comparable financings (iii) or (v) as determined in good faith by the Issuer’s senior management;FelCor LP and FelCor), and
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) each of FelCor LP and FelCor determines that any such Incurrence encumbrance or restriction will not materially impair the Issuer’s affect such Persons’ ability to make principal or interest payments under on the Notes when due as determined Notes. Nothing contained in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer this Section 4.05 shall prevent FelCor LP, FelCor or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by the Issuer’s senior managementterms of this Indenture, or
(2) restricting the sale or other disposition of property or assets of FelCor LP or FelCor or any of their respective Restricted Subsidiaries that secure Indebtedness of FelCor LP, FelCor or any of their respective Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (FelCor Lodging Trust Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or allow to become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or make payments on any Indebtedness owed, to the Issuer Company or any other Restricted Subsidiary, (b) to make loans or advances to the Company or any other Restricted Subsidiary or pay (c) to transfer any Indebtedness owed of its Property to the Issuer Company or any other Restricted Subsidiary;
Subsidiary (ii) make loans or advances toany such restrictions being collectively referred to herein as a "Payment Restriction"), or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting subletting or assignment or subletting in of any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on restrictions in licenses relating to the ability Property covered thereby and entered into in the ordinary course of a Restricted Subsidiary to dividendbusiness, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vii) any instrument governing Acquired Indebtedness not Incurred in connection with, of a Person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any other Person, other than the Person Person, or the properties or assets Property of the Person Person, so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets , provided that such Indebtedness was not incurred in anticipation of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock acquisition or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) the Bank Credit Facility as in effect on the date of this Section 3.15(b); providedIndenture or any agreement that amends, modifies, supplements, restates, extends, renews, refinances or replaces the Bank Credit Facility, provided that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right terms and conditions of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions Payment Restriction thereunder are not materially more restrictive with respect less favorable to such encumbrances and restrictions the Holders of the Securities than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due Bank Credit Facility as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing effect on the Issue Date as determined in good faith by the Issuer’s senior managementdate of this Indenture.
Appears in 1 contract
Samples: Indenture (Comstock Resources Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Stock, or any other interest or participation in, or measured by, its profits, owned by the Company or by any Restricted Subsidiary Subsidiary, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
; (iib) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
or (iiic) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except, in each case, for such encumbrances or restrictions existing under or by reason of:
: (i) applicable law, rule, regulation or order;
; (ii) this Indenture;
; (iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
; (viv) any instrument governing Acquired Indebtedness not Incurred in connection with, of a person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Personperson, or the properties or assets of any Personperson, other than the Person person or the properties or assets of the Person its Subsidiaries so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing any written agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date or amendments or modifications thereto, provided that no such agreement shall be modified or amended in such a manner as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer encumbrance or any Restricted Subsidiary in the ordinary course of business not materially restriction more restrictive than those as in effect on the Issue Date, except that International Sales Agency Services Contract and the Hedging Services Contract between Xxx Xxx Xxxx and the Company now in effect, by which Doe Run Peru pays certain fees to the Company, may be amended to reduce the aggregate amount payable thereunder to the Company to an amount equal to no less than $4,000,000 per annum; (vi) Indebtedness under the U.S. Revolving Credit Facility, the Senior Credit Facility and any other Indebtedness existing and as in effect on the Issue Date and any refinancing, refunding, replacement or extensions thereof, provided that any such encumbrance or restriction contained in any refinancing, refunding, replacement or extension of the U.S. Revolving Credit Facility shall be no more restrictive than such encumbrance or restriction contained in the U.S. Revolving Credit Facility as determined in good faith by effect on the Issuer’s senior managementIssue Date; (vii) Indebtedness under the Peruvian Revolving Credit Facility or any refinancings, refundings, replacements or extensions thereof; and (viii) Indebtedness incurred in accordance with this Indenture, provided that such encumbrance or restriction shall be no more restrictive than any encumbrance or restriction contained in the Revolving Credit Facilities.
Appears in 1 contract
Samples: Indenture (Doe Run Resources Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise enter into or cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other interest or participation in, or measured by, its profits to the extent owned by the Company or any Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, in the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iiid) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
, except for (i) applicable lawany encumbrance or restriction existing on the Issue Date, rule, regulation or order;
(ii) this Indenture;
any encumbrance or restriction applicable to a Restricted Subsidiary at the time that it becomes a Restricted Subsidiary that is not created in contemplation thereof, (iii) any encumbrance or restriction existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (i) or (ii) above; provided that the terms and conditions of any such encumbrance or restriction are not materially less favorable to the holders of Securities than those under or pursuant to the agreement being replaced or the agreement evidencing the Indebtedness refinanced, (iv) any encumbrance or restriction imposed upon a Restricted Subsidiary pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, any customary encumbrance or restriction applicable to a Restricted Subsidiary that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in an agreement or instrument governing or relating to Indebtedness contained in any Senior Bank Facility or Vendor Credit Facility; provided that the provisions of such agreement referred to in such clause (iii) or (v) as determined in good faith by permit the Issuer’s senior management;
(ix) Liens permitted to be Incurred payment of interest and principal and mandatory repurchases pursuant to the provisions terms of this Indenture and the Securities and other Indebtedness that is solely an obligation of the covenant described under Section 3.17 Company, but provided further that limit such agreement may nevertheless contain customary net worth, leverage, invested capital and other financial covenants, customary covenants regarding the right merger of or sale of all or any person to transfer substantial part of the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in Subsidiary, customary restrictions on transactions with affiliates, and customary subordination provisions governing indebtedness owed to the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementCompany or any Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Optel Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(aThe provisions of the covenant described in paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethis Indenture, regulation or orderthe Guarantees, the indentures governing the DGL Notes, the indentures governing the existing senior notes, the Senior Credit Facilities and the security documents related thereto;
(ii) any customary encumbrances or restrictions created under any agreements with respect to Debt of the Issuer or any Restricted Subsidiary permitted to be Incurred subsequent to the date of this IndentureIndenture pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with such Section; provided (i) that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default or failure to achieve or maintain a specified financial ratio under such agreement or (ii) will not, in the good faith judgment of the Issuer, be likely to materially adversely affect the ability of the Issuer to make principal and interest payments on the Notes when due;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions date of this Indenture (other than those an agreement described in existence on the Issue Date as determined in good faith by the Issuer’s senior managementanother clause of this paragraph (b));
(iv) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, encumbrances and restrictions: (A) that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary, or any customary restriction on Subsidiary is a party; and (B) contained in operating leases for real property and restricting only the ability transfer of such real property upon the occurrence and during the continuance of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, default in each case permitted to be Incurred under this Indenturethe payment of rent;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets permitted by the provisions of such Restricted Subsidiary; provided, that such restrictions apply solely Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Issuer’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted or patented materialsextent set forth in the security document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (b)(i), (ii), and (iii); provided that the terms and conditions of any such encumbrances or restrictions are not materially less favorable, taken as a whole, to be Incurred the Holders than those under or pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensagreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or replaced;
(x) Purchase Money Indebtedness encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(xi) customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and provided that the Issuer determines that any such encumbrance or restriction will not materially affect the ability of the Issuer or any Guarantor to make any anticipated principal or interest payment on the Notes;
(xii) in the case of clause (a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;business; or
(xiii) restrictions in Indebtedness Incurred any encumbrance or restriction arising by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth reason of customary non-assignment provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementagreements.
Appears in 1 contract
Samples: Indenture (Digicel Group LTD)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any Restricted Subsidiary, or with respect to any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) . However, the preceding restrictions shall not apply to encumbrances or restrictions restrictions:
(i) existing under this Indenture or in respect of the Notes;
(ii) existing under or by reason of:
(i) of applicable law, law or governmental rule, regulation or order;
(iiiii) on any property or assets acquired from a Person which is merged with or into the Company or any Restricted Subsidiary, or by reason of any Liens on the property or assets, or relating to the Indebtedness, of any Person or other entity existing at the time such Person or other entity becomes a Restricted Subsidiary, or restriction relating to Indebtedness of any such Person and, in any such case, is not created as a result of or in connection with or in anticipation of any such transaction; provided that any such Lien created to secure or provide for the payment of any part of the purchase price of such Person shall not be permitted by this Indenturecovenant; provided further, that such Liens may not extend to any other property owned by the Company or any Restricted Subsidiary;
(iiiiv) on any property or assets existing at the time of acquisition thereof and which are not created as a result of or in connection with or in anticipation of such acquisition; provided that any such encumbrance or restriction pursuant created to an agreement in effect at secure or entered into provide for the payment of any part of the purchase price of such Person shall not be permitted by this covenant; provided further, that such encumbrances and restrictions may not extend to any other property owned by the Company or any Restricted Subsidiary;
(v) the terms of any Indebtedness outstanding on the Issue Closing Date, and any amendmentsamendment, restatementsmodification, renewalsrestatement, replacements renewal, restructuring, replacement or refinancings refinancing thereof; provided, that any amendment, modification, restatement, renewal, restructuring, replacement or refinancing is not materially more restrictive restrictive, taken as a whole, with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior managementClosing Date;
(ivvi) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vvii) in the case of clause (d) above:
(1) that exist by virtue of any instrument governing Acquired Indebtedness not Incurred in connection withtransfer of, agreement to transfer, option or right with respect to, or in anticipation or contemplation ofLien on, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties property or assets of the Person so acquiredCompany or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(vi2) restrictions with respect that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract or contractual right;
(3) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the Issuer property subject to such mortgages, pledges or other security agreements; or
(4) imposed by Purchase Money Obligations for property acquired in the ordinary course of business or by Capitalized Lease Obligations permitted under this Indenture on the property so acquired, but only to the extent that such encumbrances or restrictions restrict the transfer of the property.
(viii) by reason of Liens that secure Indebtedness otherwise permitted to be incurred under the provisions of the covenant described under the covenant described under Section 3.13 above and that limit the right of the debtor to dispose of the assets subject to such Liens;
(ix) imposed with respect of a Restricted Subsidiary pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock all or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to substantially all the Capital Stock or assets of such Restricted Subsidiary being sold (and in pending the case closing of Capital Stock, its Subsidiaries)such sale or disposition;
(viix) resulting from restrictions on cash or other deposits or other customary restrictions requirements imposed on by customers or suppliers under contracts entered into in the transfer ordinary course of copyrighted or patented materialsbusiness;
(viiixi) under an agreement governing effecting a Refinancing or a renewal, extension or replacement of Indebtedness Incurred to Refinance the Indebtedness issued, assumed or otherwise permitted by this Indenture and Incurred pursuant to an agreement referred to in clause (iii) or (viv) of above or this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances clause (xi) or restrictions than those contained in the any amendment to an agreement referred to in such clause (iii) or (viv) above or this clause (xi); provided, however, that the restrictions with respect to such Restricted Subsidiary contained in any such Refinancing or other agreement or amendment shall be no less favorable, taken as determined a whole, to the holders of the Notes than the restrictions with respect to such Restricted Subsidiary contained in good faith by the Issuer’s senior managementagreement being Refinanced or amended or renewed, extended or replaced;
(ixxii) Liens Indebtedness permitted to be Incurred incurred subsequent to the Closing Date pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens3.8;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xiixiii) customary provisions in joint venture agreements and other similar agreements relating solely to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or resulting from customary restrictions pursuant to any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementPermitted Receivables Financing.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or restriction of any kind, on the ability of any Restricted Subsidiary to:
to (i) pay dividends dividends, in cash or otherwise, or make any other distributions distribution on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits, to the Issuer Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make any Investment in the Company or any other Restricted Subsidiary or pay (iv) transfer any Indebtedness owed of its properties or assets to the Issuer Company or any other Restricted Subsidiary;
, except for: (ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iiia) any encumbrance or restriction pursuant to an existing under any agreement in effect at on the Issue Date; (b) any encumbrance or entered into restriction, with respect to a Subsidiary that is not a Restricted Subsidiary of the Company on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on at the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of time such Person becomes a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness of the Company and not Incurred incurred in connection with, or in anticipation or contemplation of, the relevant acquisitionsuch Person becoming a Restricted Subsidiary; PROVIDED, merger or consolidationHOWEVER, which encumbrance or restriction is that such encumbrances and restrictions are not applicable to the Company or any Personother Restricted Subsidiary, or the properties or assets of the Company or any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely (c) customary provisions restricting the subletting or assignment of any lease or the assignment of any other contract to which the Capital Stock Company or assets of such any Restricted Subsidiary being sold (and in the case of Capital Stockis a party, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted which lease or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement contract is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired entered into in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed consistent with past practice; (d) any encumbrance or restriction contained in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.con-
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary of the Company, (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary of the Company or (be) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, law or any applicable rule, regulation or order;
, (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted SubsidiarySubsidiary of the Company, or any (iii) customary restriction restrictions on the ability transfers of property subject to a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case Lien permitted to be Incurred under this Indenture;
, (iv) the Credit Agreement, as in effect on the Issue Date, (v) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Company in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such Restricted Subsidiary; providedencumbrance or restriction, that by its terms, terminates on the earlier of the termination of such restrictions apply solely agreement or the consummation of such agreement and so long as such restriction applies only to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stockto be sold), its Subsidiaries);
(vii) customary restrictions imposed any agreement in effect on the transfer of copyrighted or patented materials;
Issue Date, (viii) an agreement governing Indebtedness Incurred to Refinance this Indenture and the Indebtedness issuedGuarantees, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of indentures governing the covenant described under Section 3.17 that limit 10 3/4% Notes, the right of any person to transfer 9 1/2% Notes, the assets subject to such Liens;
8.80% Notes, the 9 1/4% Notes and the 9% Notes, (x) Purchase Money Indebtedness for property acquired joint venture agreements and other similar agreements entered into in the ordinary course of business and Capitalized Lease Obligations that impose restrictions prohibit actions of the nature discussed type described in clause clauses (iiia), (c), (d) of Section 3.15(aand (e) above on the property so acquired;
above, (xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements any agreement entered into or agreed with respect to a Special Purpose Vehicle in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith connection with a Securitization Transaction, containing customary restrictions required by the Issuer’s senior management;
institutional sponsor or arranger of such Securitization Transaction in similar types of documents relating to the purchase of similar assets in connection with the financing thereof, (xii) customary provisions in joint venture agreements restrictions relating to dividends or other distributions Foreign Subsidiaries contained in respect Indebtedness Incurred pursuant to clause (k) of such joint venture or the securities, assets or revenues definition of such joint venture;
“Permitted Indebtedness,” and (xiii) restrictions any agreement that amends, extends, refinances, renews or replaces any agreement described in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; foregoing clauses, provided, however, that (A) the terms and conditions of any such restrictions agreement are not materially more restrictive less favorable to the Holders of the Securities with respect to such encumbrances dividend and payment restrictions than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement amended, extended, refinanced, renewed or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (United Rentals Gulf Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.16(a) shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the August 2019 Notes, rulethe Existing Ardagh Bonds, regulation this Indenture, the indentures governing the August 2019 Notes, any Credit Facility, the indentures governing the Existing Ardagh Bonds, the Intercreditor Agreement (or orderany Additional Intercreditor Agreement), the Senior Holdco Notes and the security documents related thereto or by other indentures or agreements governing other Debt incurred ranking equally with the Notes;
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be incurred subsequent to the August 2019 Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be incurred under Credit Facilities or any guarantees thereof in accordance with Section 4.06; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the August 2019 Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother sub-clause of this Section 4.16(b));
(iv) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Parent Guarantor or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;acquired (including its Subsidiaries);
(vi) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets permitted by the provisions of such Restricted Subsidiary; provided, that such restrictions apply solely Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of Section 4.16(a)(iv), customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing sub-clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Stock, or any other interest or participation in, or measured by, its profits, owned by the Company or by any Restricted Subsidiary Subsidiary, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
; (iib) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
or (iiic) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except, in each case, for such encumbrances or restrictions existing under or by reason of:
: (i) applicable law, rule, regulation or order;
; (ii) this Indenture;
; (iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
; (viv) any instrument governing Acquired Indebtedness not Incurred in connection with, of a person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Personperson, or the properties or assets of any Personperson, other than the Person person or the properties or assets of the Person its Subsidiaries so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing any written agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date or amendments or modifications thereto, provided that no such agreement shall be modified or amended in such a manner as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer encumbrance or any Restricted Subsidiary in the ordinary course of business not materially restriction more restrictive than those as in effect on the Issue Date; (vi) Indebtedness existing and as in effect on the Issue Date, including, without limitation, the U.S. Revolving Credit Facility or any refinancing, refunding, replacement or extensions thereof, provided that any such encumbrance or restriction contained in any refinancing, refunding, replacement or extension of the U.S. Revolving Credit Facility shall be no more restrictive than such encumbrance or restriction contained in the U.S. Revolving Credit Facility as in effect on the Issue Date; (vii) Indebtedness under the Peruvian Revolving Credit Facility or any refinancings, refundings, replacements or extensions thereof, provided that such restrictions do not prohibit payments pursuant to the intercompany agreements between the Company and the Restricted Subsidiaries as in effect on the Issue Date as determined or pursuant to any replacements thereof or pursuant to any comparable agreements thereto, in good faith by each case providing for the Issuer’s senior managementsame or similar payments; and (viii) Indebtedness incurred in accordance with this Indenture, provided that such encumbrance or restriction shall be no more restrictive than 58 any encumbrance or restriction contained in the Revolving Credit Facilities.
Appears in 1 contract
Samples: Indenture (Doe Run Resources Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary of the Company, (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary of the Company or (be) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, law or any applicable rule, regulation or order;
, (ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted SubsidiarySubsidiary of the Company, or any (iii) customary restriction restrictions on the ability transfers of property subject to a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case Lien permitted to be Incurred under this Indenture;
, (iv) the Credit Agreement, as in effect on the Issue Date, (v) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Company in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding an agreement which has been entered into for the sale or disposition of Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such Restricted Subsidiary; providedencumbrance or restriction, that by its terms, terminates on the earlier of the termination of such restrictions apply solely agreement or the consummation of such agreement and so long as such restriction applies only to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stockto be sold), its Subsidiaries);
(vii) customary restrictions imposed any agreement in effect on the transfer of copyrighted or patented materials;
Issue Date, (viii) an agreement governing Indebtedness Incurred to Refinance this Indenture and the Indebtedness issuedGuarantees, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of indentures governing the covenant described under Section 3.17 that limit 10 3/4% Notes, the right of any person to transfer 2002 10¾% Notes, the assets subject to such Liens;
9 1/4% Notes and the 9% Notes, (x) Purchase Money Indebtedness for property acquired joint venture agreements and other similar agreements entered into in the ordinary course of business and Capitalized Lease Obligations that impose restrictions prohibit actions of the nature discussed type described in clause clauses (iiia), (c), (d) of Section 3.15(aand (e) above on the property so acquired;
above, (xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements any agreement entered into or agreed with respect to a Special Purpose Vehicle in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith connection with a Securitization Transaction, containing customary restrictions required by the Issuer’s senior management;
institutional sponsor or arranger of such Securitization Transaction in similar types of documents relating to the purchase of similar assets in connection with the financing thereof, (xii) customary provisions in joint venture agreements restrictions relating to dividends or other distributions Foreign Subsidiaries contained in respect Indebtedness Incurred pursuant to clause (k) of such joint venture or the securities, assets or revenues definition of such joint venture;
“Permitted Indebtedness,” and (xiii) restrictions any agreement that amends, extends, refinances, renews or replaces any agreement described in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; foregoing clauses, provided, however, that (A) the terms and conditions of any such restrictions agreement are not materially more restrictive less favorable to the Holders of the Securities with respect to such encumbrances dividend and payment restrictions than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement amended, extended, refinanced, renewed or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (United Rentals Inc /De)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or allow to become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary toSubsidiary:
(i1) to pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances toStock, or make payments on any Investment inIndebtedness owed, to the Issuer Company or any other Restricted Subsidiary; orprovided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions before dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 5.08;
(iii2) to make loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or 56
(3) to transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into agreements existing on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those including the Bank Credit Agreement as in existence effect on the Issue Date as determined in good faith by and this Indenture, the Issuer’s senior managementNotes and the Subsidiary Guarantees;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v2) any instrument governing Acquired Indebtedness not Incurred in connection with, of a Person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any other Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired; provided that such Indebtedness was not incurred in contemplation of such acquisition;
(vi3) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding any agreement which has been entered into for the sale or other disposition of Capital Stock or assets of such a Restricted Subsidiary; provided, Subsidiary that such restrictions apply solely to the Capital Stock or assets of restricts distributions by such Restricted Subsidiary being sold (and limited to restrictions on distributions of such assets in the case of assets (other than Capital Stock, its Subsidiaries)) being sold) pending such sale or other disposition;
(vii4) customary restrictions imposed on the transfer any amendment, restatement, modification, supplement, extension, renewal, refunding, replacement or refinancing of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iiiSection 5.08(b)(1) or (v) of this Section 3.15(b2); provided, provided that such Refinancing agreement is the encumbrances or restrictions contained in the agreements governing the foregoing are not materially more restrictive with respect to such encumbrances or restrictions restrictive, taken as a whole, than those contained in the agreement referred agreements governing such Indebtedness as in effect prior to in such clause (iii) amendment, restatement, modification, supplement, extension, renewal, refunding, replacement or (v) refinancing as determined in good faith by the Issuer’s senior managementCompany;
(ix5) Liens this Indenture, the Notes and the related Subsidiary Guarantees;
(6) cash or other deposits, or net worth requirements or similar requirements, imposed by suppliers, or other deposits by parties under agreements entered into in the ordinary course of the Oil and Gas Business of the types described in the definition of “Permitted Business Investments”;
(7) any applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(8) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Company’s Board of Directors or any of its officers, which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(9) any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred incurred under this Indenture or if such encumbrances or restrictions are 57 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 provisions Issue Date or those contained in this Indenture or the Bank Credit Agreement, in each case as determined in good faith by the Board of Directors or an Officer of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such LiensCompany;
(x10) Purchase Money Indebtedness encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(11) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or customary restrictions in licenses relating to the property covered thereby and entered into in the ordinary course of business;
(12) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(13) with respect to Section 5.08(a)(3), any of the following encumbrances or restrictions:
(i) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations or otherwise permitted under this Indenture that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xiii) restrictions on cash or other deposits imposed by customers under contracts or other arrangements contained in asset sale agreements limiting the transfer of such assets pending the closing of such sale; and
(iii) agreements governing hedging obligations entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness.
Appears in 1 contract
Samples: First Supplemental Indenture (Comstock Resources Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
: (i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary or Subsidiary; (ii) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; or
(iii) make an investment in the Company or any other Restricted Subsidiary; or (iv) transfer any of its property or assets Properties to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement except in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to each instance for such encumbrances or restrictions than those pursuant to: (a) this Indenture, the 1997 Indenture, or the Credit Facility; (b) any other agreement in effect as of the date of this Indenture; (c) any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in existence on at the Issue Date as determined time of such acquisition (but not created in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any other Person, or the properties or assets Properties of any other Person, other than the Person or the properties or assets Properties of the Person Person, so acquired;
; (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(viid) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant leases and licenses relating to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired Property covered thereby and entered into in the ordinary course of business and Capitalized Lease Obligations business; or (e) any agreement that impose extends, renews, refinances or replaces the agreements containing restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on foregoing clauses (a) through (d), provided that in the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect case of such joint venture or agreements referenced in clauses (b) through (d) above, the securities, assets or revenues terms and conditions of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) any such restrictions are not materially more restrictive less favorable to the Holders of the Securities than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced or replaced, and except with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iiiiv) above as determined in good faith by the Issuer’s senior management or only, (B1) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary restrictions in the ordinary course form of business Liens which are not materially more restrictive than those existing prohibited under Section 10.15 and which contain customary ------------- limitations on the Issue Date as determined transfer of collateral and (2) customary restrictions contained in good faith by asset sale agreements limiting the Issuer’s senior managementtransfer of such assets pending the closing of such sale.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist exist, or enter into any agreement with any person that would cause to become effective effective, any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other interest or participation in, or measured by, its profits to the extent owned by the Company or any Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, in the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iiid) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
, except for (i) applicable lawany encumbrance or restriction existing on the Issue Date, rule, regulation or order;
(ii) this Indenture;
any encumbrance or restriction applicable to a Restricted Subsidiary at the time that it becomes a Restricted Subsidiary that is not created in contemplation thereof, (iii) any encumbrance or restriction existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (i) or (ii) above; provided that the terms and conditions of any such encumbrance or restriction are not materially less favorable to the holders of Securities than those under or pursuant to the agreement being replaced or the agreement evidencing the Indebtedness refinanced, (iv) any encumbrance or restriction imposed upon a Restricted Subsidiary pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, any customary encumbrance or restriction applicable to a Restricted Subsidiary that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in an agreement or instrument governing or relating to Indebtedness contained in any Senior Bank Facility or Vendor Credit Facility; provided that the provisions of such agreement referred to in such clause (iii) or (v) as determined in good faith by permit the Issuer’s senior management;
(ix) Liens permitted to be Incurred payment of interest and principal and mandatory repurchases pursuant to the provisions terms of this Indenture and the Securities and other Indebtedness that is solely an obligation of the covenant described under Section 3.17 Company, but provided further that limit such agreement may nevertheless contain customary net worth, leverage, invested capital and other financial covenants, customary covenants regarding the right merger of or sale of all or any person to transfer substantial part of the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in Subsidiary, customary restrictions on transactions with affiliates, and customary subordination provisions governing indebtedness owed to the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementCompany or any Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Optel Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Borrower will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower to:
(i) pay dividends or make any other distributions distribution on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock;
(ii) pay any Indebtedness owed to the Issuer Borrower or any other a Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, in the Issuer Borrower or any other a Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Borrower or any other Restricted Subsidiary., except
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iiia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Agreement;
(b) any encumbrance or restriction, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by that was not a LienRestricted Subsidiary of the Borrower on the date of this Agreement, in each existence at the time such Person becomes a Restricted Subsidiary of the Borrower and, in the case permitted to be Incurred under this Indenture;
of clauses (va) any instrument governing Acquired Indebtedness and (b), not Incurred incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which such Person becoming a Restricted Subsidiary;
(c) any encumbrance or restriction is not applicable to existing under any Personagreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (a) and (b), or in this clause (c), provided that the properties or assets terms and conditions of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions are not materially less favorable to the Lenders than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of agreement evidencing the covenant described under Section 3.17 Indebtedness so extended, renewed, refinanced or replaced (except that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations an encumbrance or restriction that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business is not materially more restrictive than those existing on the Issue Date as determined set forth in good faith by the Issuer’s senior management;
(xii) customary provisions this Agreement shall in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior managementany event be permitted hereunder); and
(xivd) net worth provisions in leases entered into by any encumbrance or restriction created pursuant to an asset sale agreement, stock sale agreement or similar instrument pursuant to which an Asset Sale permitted under Section 7.04 is to be consummated, so long as such restriction or encumbrance shall be effective only for a period from the Issuer execution and delivery of such agreement or any Restricted Subsidiary in the ordinary course of business instrument through a termination date not materially more restrictive later than those existing on the Issue Date as determined in good faith by the Issuer’s senior management270 days after such execution and delivery.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.16(a) shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the August 2019 Notes, rulethe Existing Ardagh Bonds, regulation this Indenture, the indenture governing the August 2019 Notes, any Credit Facility, the indentures governing the Existing Ardagh Bonds, the Intercreditor Agreement (or orderany Additional Intercreditor Agreement), the Senior Holdco Notes and the security documents related thereto or by other indentures or agreements governing other Debt incurred ranking equally with the Notes;
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be incurred subsequent to the August 2019 Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be incurred under Credit Facilities or any guarantees thereof in accordance with Section 4.06; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the August 2019 Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother sub-clause of this Section 4.16(b));
(iv) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Parent Guarantor or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of Section 4.16(a)(iv), customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing sub-clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.replaced.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or allow to become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
Subsidiary: (ia) to pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or make payments on any Indebtedness owed, to the Issuer Company or any other Restricted Subsidiary, (b) to make loans or advances to the Company or any other Restricted Subsidiary or pay (c) to transfer any Indebtedness owed of its Property to the Issuer Company or any other Restricted Subsidiary;
Subsidiary (ii) make loans or advances to, or make any Investment insuch restrictions being collectively referred to herein as a “Payment Restriction”). However, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(i1) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting subletting or assignment or subletting in of any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on restrictions in licenses relating to the ability Property covered thereby and entered into in the ordinary course of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenturebusiness;
(v2) any instrument governing Acquired Indebtedness not Incurred in connection with, of a Person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any other Person, other than the Person Person, or the properties or assets Property of the Person Person, so acquired, provided that such Indebtedness was not incurred in anticipation of such acquisition;
(vi3) restrictions with respect to any instrument governing Indebtedness or Disqualified Capital Stock of a Restricted Subsidiary of the Issuer imposed pursuant to that is not a binding agreement which has been entered into for the sale Subsidiary Guarantor, provided that (a) such Indebtedness or disposition of Disqualified Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit 9.12 and (b) the right terms and conditions of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business Payment Restrictions thereunder are not materially more restrictive than those existing the Payment Restrictions contained in the Bank Credit Agreement and the Indenture as in effect on the Issue Date;
(4) the Bank Credit Agreement as in effect on the Issue Date as determined in good faith by or any agreement that amends, modifies, supplements, restates, extends, renews, refinances or replaces the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect Bank Credit Agreement, provided that the terms and conditions of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions any Payment Restrictions thereunder are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary Payment Restrictions contained in the ordinary course of business not materially more restrictive than those existing Bank Credit Agreement as in effect on the Issue Date Date;
(5) this Indenture, the Notes and the Subsidiary Guarantees; or
(6) the indenture governing the Company’s existing 67/8% Senior Notes due 2012, 83/8% Senior Notes due 2017 and any subsidiary guarantees thereof, in each case as determined in good faith by effect on the Issuer’s senior managementIssue Date.
Appears in 1 contract
Samples: Third Supplemental Indenture (Comstock Oil & Gas GP, LLC)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Stock, or any other interest or participation in, or measured by, its profits, owned by the Company or by any Restricted Subsidiary Subsidiary, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
; (iib) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
or (iiic) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except, in each case, for such encumbrances or restrictions existing under or by reason of:
: (i) applicable law, rule, regulation or order;
; (ii) this Indenture;
; (iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
; (viv) any instrument governing Acquired Indebtedness not Incurred in connection with, of a person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Personperson, or the properties or assets of any Personperson, other than the Person person or the properties or assets of the Person its Subsidiaries so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing any written agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date or amendments or modifications thereto, PROVIDED that no such agreement shall be modified or amended in such a manner as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer encumbrance or any Restricted Subsidiary in the ordinary course of business not materially restriction more restrictive than those as in effect on the Issue Date; (vi) Indebtedness existing and as in effect on the Issue Date, including, without limitation, the U.S. Revolving Credit Facility or any refinancing, refunding, replacement or extensions thereof, PROVIDED that any such encumbrance or restriction contained in any refinancing, refunding, replacement or extension of the U.S. Revolving Credit Facility shall be no more restrictive than such encumbrance or restriction contained in the U.S. Revolving Credit Facility as in effect on the Issue Date; (vii) Indebtedness under the Peruvian Revolving Credit Facility or any refinancings, refundings, replacements or extensions thereof, PROVIDED that such restrictions do not prohibit payments pursuant to the intercompany agreements between -57- the Company and the Restricted Subsidiaries as in effect on the Issue Date as determined or pursuant to any replacements thereof or pursuant to any comparable agreements thereto, in good faith by each case providing for the Issuer’s senior managementsame or similar payments; and (viii) Indebtedness incurred in accordance with this Indenture, PROVIDED that such encumbrance or restriction shall be no more restrictive than any encumbrance or restriction contained in the Revolving Credit Facilities.
Appears in 1 contract
Samples: Indenture (Doe Run Peru Sr Ltda)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (ii) make loans or advances to, or make any Investment inissue guarantees for the benefit of, the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iii) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
(ia) any New Credit Facility;
(b) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vc) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness not Incurred was incurred in connection with, with or in anticipation or contemplation ofof such acquisition); provided, the relevant acquisitionhowever, merger or consolidation, which that no such 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 acquiredAcquired Person;
(vid) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been customary non-assignment, subletting or net worth provisions in leases or other agreements entered into for the sale or disposition ordinary course of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (business and in the case of Capital Stock, its Subsidiaries)consistent with past practices;
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xe) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above only on the property so acquired;
(xif) restrictions on cash an agreement for the sale or other deposits imposed disposition of assets or the Capital Stock of a Restricted Subsidiary; provided, however, that such restriction or encumbrance is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted by customers under contracts Section 4.16; provided, further, however, that such restriction or other arrangements entered into or agreed encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 180 days after such execution and delivery;
(g) this Indenture, the Notes and the Note Guarantees;
(h) Indebtedness (including Refinancing Indebtedness) permitted to in the ordinary course of business not materially more restrictive than those existing on be incurred subsequent to the Issue Date as determined in good faith by pursuant to Section 4.10; provided, however, that any such restrictions are ordinary and customary with respect to the Issuer’s senior managementtype of Indebtedness being incurred;
(xiii) customary encumbrances and restrictions imposed by Liens incurred in accordance with Section 4.12;
(j) xxxxomary provisions in joint venture agreements relating to dividends or and other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;similar agreements; and
(xiiik) encumbrances and restrictions imposed by amendments, restatements, renewals, replacements or refinancings of the contracts, instruments or obligations referred to in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9clauses (a) through (j) above; provided, provided that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions are, in the good faith judgment of the Company's Board of Directors, no more restrictive, in any material respect, than those contained in such Restricted Subsidiary was subject contracts, instruments or obligations immediately prior to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management such amendment, restatement, renewal, replacement or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementrefinancing.
Appears in 1 contract
Samples: Indenture (Hawk Motors Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(aThe provisions of the covenant described in paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethis Indenture, regulation or orderthe Guarantee, the Collateral Documents, any Debt of any Parent Company outstanding on the Issue Date, the Senior Credit Facility, the DIFL Secured Notes, the DIFL Unsecured Notes, the DIFL Subordinated Notes, the New DL Notes, the PNG Facility and any security documents related thereto;
(ii) any encumbrances or restrictions created under any agreements with respect to Debt of the Issuer or a Restricted Subsidiary permitted to be incurred subsequent to the date of this IndentureIndenture pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be incurred under Credit Facilities or any guarantees thereof in accordance with such section; provided that such agreements (i) do not prohibit the payment of interest with respect to the Notes or the Guarantee absent a default or event of default or failure to achieve or maintain a specified financial ratio under such agreement, (ii) will not, in the good faith judgment of the Issuer, at the time of incurrence, be likely to materially adversely affect the ability of the Issuer to make principal and interest payments on the Notes when due or (iii) are not materially more restrictive than those in the Senior Credit Facility, the DIFL Secured Notes, the DIFL Unsecured Notes, the DIFL Subordinated Notes, the New DL Notes or the PNG Facility;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions date of this Indenture (other than those an agreement described in existence on the Issue Date as determined in good faith by the Issuer’s senior managementanother clause of this paragraph (b));
(iv) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, encumbrances and restrictions: (A) that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary, or any customary restriction on Subsidiary is a party; and (B) contained in operating leases for real property and restricting only the ability transfer of such real property upon the occurrence and during the continuance of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, default in each case permitted to be Incurred under this Indenturethe payment of rent;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets permitted by the provisions of such Restricted Subsidiary; provided, that such restrictions apply solely Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Issuer’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted or patented materialsextent set forth in the security document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (b)(i), (ii), and (iii); provided that the terms and conditions of any such encumbrances or restrictions are not materially less favorable, taken as a whole, to be Incurred the Holders than those under or pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensagreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or replaced;
(x) Purchase Money Indebtedness encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(xi) customary limitations on the distribution or disposition of assets or property in joint venture agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements (or the Persons the Capital Stock of which is the subject of such agreement);
(xii) in the case of clause (a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capital Leases for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquiredbusiness;
(xixiii) restrictions on cash any encumbrance or other deposits imposed restriction arising by customers under contracts reason of customary non-assignment provisions in agreements; or
(xiv) provisions restricting the granting of a security interest in intellectual property contained in licenses, sublicenses or other arrangements cross-licenses by the Issuer and its Restricted Subsidiaries of such intellectual property, which licenses, sublicenses and cross-licenses were entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined (in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of which case such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect restriction shall relate only to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementintellectual property).
Appears in 1 contract
Samples: Indenture (Digicel Pacific LTD)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Issuer to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer or any other Restricted SubsidiarySubsidiary of the Issuer;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted SubsidiarySubsidiary of the Issuer; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other Restricted SubsidiarySubsidiary of the Issuer.
(b) Section 3.15(aThe provisions of paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethe Existing Ardagh Bonds, regulation this Indenture, the indentures governing the Existing Ardagh Bonds, any Credit Facility, the Intercreditor Agreement and the security documents related thereto or order;by other indentures or agreements governing other Senior Debt; provided that the encumbrances or restrictions imposed by such other indentures or agreements are not materially more restrictive, taken as a whole, than the encumbrances or restrictions imposed by the indenture governing one or more tranches of the Existing Ardagh Bonds
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Issuer or any of its Restricted Subsidiaries permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with such covenant; provided that the encumbrances or restrictions imposed by such other indentures or agreements are not materially more restrictive, taken as a whole, than the encumbrances or restrictions imposed by the indentures governing one or more tranches of the Existing Ardagh Bonds;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother clause of this paragraph (b));
(iv) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of any Restricted Subsidiarylease, license, conveyance or other similar agreement to which the Issuer or any customary restriction on the ability of its Restricted Subsidiaries is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Issuer or any of its Restricted Subsidiaries in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Issuer’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary of the Issuer; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of clause (a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Borrower will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any of the Restricted Subsidiary Subsidiaries to:
(i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Borrower or any of the Restricted Subsidiaries, or with respect to any other Restricted Subsidiary interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Borrower or any other of the Restricted SubsidiarySubsidiaries; provided that the priority that any series of preferred stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions before dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 6.02;
(ii) make loans or advances to, or make any Investment in, to the Issuer Borrower or any other of the Restricted SubsidiarySubsidiaries; or
(iii) sell, lease or transfer any of its property properties or assets to the Issuer Borrower or any other of the Restricted SubsidiarySubsidiaries (all such actions set forth in these clauses (i) through (iii) above being collectively referred to as “Intercompany Transfers”).
(b) The restrictions in Section 3.15(a6.02(a) shall will not apply to encumbrances or restrictions on the ability of any of the Restricted Subsidiaries to make Intercompany Transfers existing under or by reason of:
(i) agreements governing Indebtedness as in effect on the Closing Date;
(ii) restrictions contained in, or in respect of, Hedging Obligations permitted to be Incurred by this Agreement;
(iii) this Agreement, the First Lien Indenture, the Second Lien Note Indenture, the Intercreditor Agreement, the other Collateral Documents, the First Lien Notes, the Second Lien Notes and the guarantees thereof;
(iv) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not or Capital Stock of a Person acquired by the Borrower or any of the Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Incurred in connection with, with or in anticipation or contemplation of, the relevant of such acquisition, merger or consolidation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be Incurred;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been customary non-assignment provisions in contracts and licenses entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case ordinary course of Capital Stock, its Subsidiaries)business;
(vii) customary purchase money obligations for property acquired in the ordinary course of business, mortgage financings and Capital Lease Obligations that impose restrictions imposed on the transfer property purchased or mortgaged or leased of copyrighted or patented materialsthe nature described in clause (iii) of Section 6.02(a);
(viii) an any agreement governing Indebtedness Incurred to Refinance for the Indebtedness issued, assumed sale or Incurred pursuant to an agreement referred to in clause (iii) other disposition of the Capital Stock or (v) all or substantially all of this Section 3.15(b); provided, the assets of any Restricted Subsidiary that such Refinancing agreement is not materially more restrictive with respect to such encumbrances restricts distributions by that Restricted Subsidiary pending the sale or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior managementother disposition;
(ix) Liens permitted to be Incurred pursuant to under the provisions of the covenant described under Section 3.17 6.06 that limit the right of any person the debtor to transfer dispose of the assets subject to such Liens;
(x) Purchase Money Indebtedness for provisions limiting the disposition or distribution of assets or property acquired in joint venture agreements, partnership agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the ordinary course assets that are the subject of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquiredsuch agreements;
(xi) restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) customary provisions any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in joint venture agreements relating to dividends clauses (i), (iii), (v) or other distributions (vii) of this Section 6.02(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in respect the good faith judgment of such joint venture or the securitiesBorrower, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances encumbrance and other restrictions taken as a whole than those prior to such Restricted Subsidiary was subject to in agreements related to obligations referenced amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(xiii) encumbrances or restrictions of the nature described in clause (iii) above of Section 6.02(a) with respect to property under a charter, lease or other agreement that has been entered into in the ordinary course for the employment, charter or other hire of such property; and
(xiv) instruments governing Indebtedness that is permitted to be Incurred subsequent to the Closing Date pursuant to Section 6.03; provided that, at the time such Indebtedness is Incurred, either (a) such encumbrance or restriction is customary for financings of the same type, and such restrictions would not reasonably be expected to materially impair the Borrower’s ability to make scheduled payments of interest and principal on the Indebtedness under the Loan Documents when due or any Guarantor’s ability to make payment under its Guarantee, as determined in good faith by the Issuer’s senior management Board of Directors of the Borrower or a Financial Officer of the Borrower, or (Bb) such Incurrence will the restrictions therein are not materially impair the Issuer’s ability to make payments under the Notes when due more restrictive, taken as a whole, than those contained in this Agreement, as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by Board of Directors or a Financial Officer of the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementBorrower.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) Section 3.15(aThe provisions of paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethe Existing Ardagh Bonds, regulation the New Secured Notes, this Indenture, any Credit Facility, the indentures governing the Existing Ardagh Bonds and the New Secured Notes, the Intercreditor Agreement (or orderany Additional Intercreditor Agreement), the Senior PIK Notes and the security documents related thereto or by other indentures or agreements governing other Debt Incurred ranking equally with the Notes; provided that the encumbrances or restrictions imposed by such other indentures or agreements are not materially more restrictive, taken as a whole, than the encumbrances or restrictions imposed by this Indenture;
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with such covenant; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother clause of this paragraph (b));
(iv) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Parent Guarantor or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of clause (a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions Incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. Unless the Notes are rated the Required Rating (a) Except as provided during which such time this Section 4.13 will not be in clause (b) beloweffect), the Issuer shall Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (i) pay dividends or make any other distributions distribution on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits, or pay any interest or principal due on Indebtedness owed to the Issuer Company or any other of its Restricted Subsidiary;
Subsidiaries; (ii) make loans or advances to, or make any Investment in, to the Issuer Company or any other of its Restricted SubsidiarySubsidiaries; or
or (iii) transfer any of its property properties or assets to the Issuer Company or any of its Restricted Subsidiaries, other Restricted Subsidiary.
than (a) any such encumbrance or restriction imposed by any Gaming Authority, (b) Section 3.15(aany encumbrance or restriction existing on February 13, 2001 contained in the Bank Facility relating to Indebtedness that does not exceed the greater of (1) shall not apply $200 million or (2) 1.5 times Operating Cash Flow calculated cumulatively for the four most recent consecutive fiscal quarters of the Company immediately preceding the date on which such Indebtedness is incurred, (c) any encumbrance or restriction with respect to encumbrances a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness (other than Indebtedness incurred in anticipation of, as consideration in, or restrictions existing under to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of the Company) incurred by reason of:
such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary became a Restricted Subsidiary of the Company and outstanding on such date; (id) applicable law, rule, regulation any pledge by the Company or order;
a Restricted Subsidiary of the stock of an Unrestricted Subsidiary if such pledge is made in connection with the incurrence of Qualified Non-Recourse Debt by such Unrestricted Subsidiary; and (ii) this Indenture;
(iiie) any encumbrance or restriction pursuant to an agreement in effect at relating to Indebtedness issued to repay or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures amend Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iiib), (c) or (ve) of this Section 3.15(b); providedparagraph, PROVIDED, HOWEVER, that any such Refinancing agreement encumbrance or restriction is not materially more restrictive with respect no less favorable to such the Noteholders than encumbrances or and restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends the Indebtedness so repaid or other distributions amended, and PROVIDED FURTHER, that in respect the event that Indebtedness is issued to repay or amend the Bank Facility, the aggregate principal amount of such joint venture or Indebtedness shall not exceed the securities, assets or revenues greater of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management $200 million or (B) 1.5 times Operating Cash Flow calculated cumulatively for the four most recent consecutive fiscal quarters of the Company immediately preceding the date on which such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementIndebtedness is issued.
Appears in 1 contract
Samples: Indenture (Station Casinos Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective enter into any agreement with any Person that would cause any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits owned by, or pay any Indebtedness owed to to, the Issuer Company or any other a Restricted Subsidiary;,
(iib) make any loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; , or
(iiic) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:, except, in each case, for
(i) applicable lawrestrictions imposed by the Notes, rule, regulation or order;this Indenture and the Subsidiary Guarantees,
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions restricting subletting or assignment of any contract and customary provisions restricting assignment or subletting lease entered into in any lease governing a leasehold interest the ordinary course of any Restricted Subsidiarybusiness, consistent with industry practices,
(iii) restrictions imposed by applicable gaming laws or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;applicable Gaming Authority,
(viv) restrictions under any instrument governing Acquired Indebtedness agreement relating to any property, assets or business acquired by the Company or its Restricted Subsidiaries, which restrictions existed at the time of acquisition, were not Incurred put in connection with, or place in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is of such acquisition and are not applicable to any Person, or the properties or assets of any Person, other than the Person acquired, or to any property, assets or business other than the properties or property, assets and business of the Person so acquired;,
(v) any such contractual encumbrance in existence as of the Issue Date or imposed by or in connection with the incurrence of any FF&E Financing or Capitalized Lease Obligations permitted pursuant to clause (b)(iv) of Section 10.10, provided such encumbrance does not have the effect of restricting the payment of dividends to the Company or any Restricted Subsidiary or the payment of Indebtedness owed to the Company or any Restricted Subsidiary or reducing the amount of any such dividends or payments,
(vi) any restrictions with respect to Capital Stock or assets, respectively, of a Restricted Subsidiary of the Issuer Company imposed pursuant to a binding an agreement which that 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 restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);,
(vii) customary restrictions imposed on by the transfer of copyrighted or patented materials;Bank Credit Facility, and
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred replacements of restrictions imposed pursuant to an agreement referred to in clause clauses (iiii) or through (vvii) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially are no more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbeing replaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Borrower will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, indirectly create or otherwise enter into or cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits to the Issuer extent owned by the Borrower or any Restricted Subsidiary, (b) pay any Indebtedness owed to the Borrower or any Restricted Subsidiary, (c) make any Investment in the Borrower or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Borrower or to any other Restricted Subsidiary.
, except for (bin each case except as otherwise noted in the following clause (ii)) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement contained in effect at this Agreement or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined Effective Date, (ii) any encumbrance or restriction existing under agreements relating to an Investment in good faith by an ISP (which in the Issuer’s senior management;
case of clauses (iva) and (b) shall not be permitted in the case of ISPs that are Restricted Subsidiaries) to the extent consistent with past practice, (iii) customary non-assignment provisions of provisions, (iv) any contract and customary provisions restricting assignment encumbrances or subletting restriction pertaining to an asset subject to a Lien to the extent set forth in any lease the security documentation governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a such Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary at the time that it becomes a Restricted Subsidiary that is not created in contemplation thereof, (vi) any encumbrance or restriction existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (v) above; provided that the terms and conditions of any such encumbrance or restriction are not materially less favorable to the Issuer imposed Lenders than those under or pursuant to the agreement being replaced or the agreement evidencing the Indebtedness refinanced and (vii) any encumbrance or restriction imposed upon a binding Restricted Subsidiary pursuant to an agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant any Asset Sale to the provisions of extent limited to the covenant described under Section 3.17 that limit the right of any person to transfer the Capital Stock or assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementquestion.
Appears in 1 contract
Samples: Credit Agreement (Verio Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) The provisions of Section 3.15(a4.16(a) shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethe Existing Ardagh Bonds, regulation this Indenture, any Credit Facility, the indentures governing the Existing Ardagh Bonds, the Intercreditor Agreement (or orderany Additional Intercreditor Agreement), and the security documents related thereto or by other indentures or agreements governing other Debt Incurred ranking equally with the Notes;
(ii) this Indentureany customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with Section 4.06; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined (other than an agreement described in good faith by the Issuer’s senior managementanother sub-clause of this Section 4.16(b));
(iv) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;or
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in Section 4.16(a)(iv), any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries;
(xi) in the case of Section 4.16(a)(iv), customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to any Permitted Receivables Financing; provided that such encumbrances and or restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith are customarily required by the Issuer’s senior management institutional sponsor or (B) arranger of such Incurrence will not materially impair Permitted Receivables Financing in similar types of documents relating to the Issuer’s ability to make payments under purchase of similar receivables in connection with the Notes when due as determined in good faith by the Issuer’s senior management; andfinancing thereof;
(xiv) net worth provisions in leases entered into by the Issuer encumbrances or any restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions Incurred in accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the agreements containing the encumbrances or restrictions in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.foregoing sub-clauses (i) through (xv); provided
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise enter into or cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits to the Issuer extent owned by the Company or any Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (c) make any Investment in the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
, except for (bin each case except as otherwise noted in the following clause (ii)) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into existence on the Issue Date, (ii) any encumbrance or restriction existing under agreements relating to an Investment in an ISP (which in the case of clauses (a) and any amendments(b) shall not be permitted in the case of ISPs that are Restricted Subsidiaries) to the extent consistent with past practice, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iviii) customary non-assignment provisions of provisions, (iv) any contract and customary provisions restricting assignment encumbrances or subletting restriction pertaining to an asset subject to a Lien to the extent set forth in any lease the security documentation governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a such Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary at the time that it becomes a Restricted Subsidiary that is not created in contemplation thereof, (vi) any encumbrance or restriction existing under any agreement that refinances or replaces an agreement containing a restriction permitted by clause (v) above; provided that the terms and conditions of any such encumbrance or restriction are not materially less favorable to the Issuer imposed holders of Notes than those under or pursuant to the agreement being replaced or the agreement evidencing the Indebtedness refinanced, (vii) any encumbrance or restriction imposed upon a binding Restricted Subsidiary pursuant to an agreement which has been entered into for the sale or disposition of Capital Stock all or assets substantially all of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (or any Asset Sale to the extent limited to the Capital Stock or assets in question and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) any customary encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness Incurred to Refinance contained in any Permitted Credit Facility; provided that the Indebtedness issued, assumed or Incurred provisions of such agreement permit the payment of interest and principal and mandatory repurchases pursuant to an agreement referred to in clause (iii) or (v) the terms of this Section 3.15(b); Indenture and the Notes and other Indebtedness that is solely an obligation of the Company, but, provided, further, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances may nevertheless contain customary net worth, leverage, invested capital and other financial covenants, customary covenants regarding the merger of or restrictions than those contained in the agreement referred to in such clause (iii) sale of all or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions any substantial part of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer Company or any Restricted Subsidiary in Subsidiary, customary restrictions on transactions with affiliates, and customary subordination provisions governing Indebtedness owed to the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementCompany or any Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Verio Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any of the Restricted Subsidiary Subsidiaries to:
(i1) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any of the Restricted Subsidiaries, or with respect to any other Restricted Subsidiary interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other of the Restricted SubsidiarySubsidiaries; provided that the priority that any series of preferred stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions before dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(ii2) make loans or advances to, or make any Investment in, to the Issuer Company or any other of the Restricted SubsidiarySubsidiaries; or
(iii3) sell, or transfer any of its property properties or assets to the Issuer Company or any other of the Restricted SubsidiarySubsidiaries (all such actions set forth in these clauses (1) through (3) being collectively referred to as “Intercompany Transfers”).
(b) The restrictions in Section 3.15(a4.08(a) shall will not apply to encumbrances or restrictions on the ability of any of the Restricted Subsidiaries to make Intercompany Transfers existing under or by reason of:
(i1) agreements governing Indebtedness as in effect on the Issue Date;
(2) restrictions contained in, or in respect of, Hedging Obligations permitted to be Incurred by this Indenture;
(3) this Indenture, the Intercreditor Agreement, the other Collateral Documents, the Notes and the Guarantees;
(4) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v5) any instrument governing Acquired Indebtedness not or Capital Stock of a Person acquired by the Company or any of the Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Incurred in connection with, with or in anticipation or contemplation of, the relevant of such acquisition, merger or consolidation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred;
(vi6) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business, mortgage financings and Capital Lease Obligations that impose restrictions with respect to a Restricted Subsidiary on the property purchased or mortgaged of the Issuer imposed pursuant to a binding nature described in clause (3) of Section 4.08(a);
(8) any agreement which has been entered into for the sale or other disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or all or substantially all of the assets of such any Restricted Subsidiary being sold (and in that restricts distributions by that Restricted Subsidiary pending the case of Capital Stock, its Subsidiaries)sale or other disposition;
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix9) Liens permitted to be Incurred pursuant to under the provisions of the covenant described under Section 3.17 4.12 that limit the right of any person the debtor to transfer dispose of the assets subject to such Liens;
(x10) Purchase Money Indebtedness for provisions limiting the disposition or distribution of assets or property acquired in joint venture agreements, partnership agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the ordinary course assets that are the subject of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquiredsuch agreements;
(xi11) restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on business;
(12) encumbrances or restrictions of the nature described in clause (3) of Section 4.08(a) with respect to property under a charter, lease, sub-lease or other agreement that has been entered into in the ordinary course for the employment, charter or other hire of such property;
(13) instruments governing Indebtedness, Disqualified Stock or Preferred Stock that is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09; provided that, at the time such Indebtedness is Incurred, either (a) such encumbrances or restrictions would not reasonably be expected to materially impair the Company’s ability to make scheduled payments of interest and principal on the Notes when due or any Guarantor’s ability to make payment under its Guarantee, as determined in good faith by the Issuer’s senior managementBoard of Directors of the Company or a Financial Officer of the Company, or (b) the restrictions therein are not materially more restrictive, taken as a whole, than those contained in this Indenture and the Notes, as determined in good faith by the Board of Directors or a Financial Officer of the Company;
(xii14) restrictions contained in Hedging Obligations permitted under this Indenture;
(15) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;; and
(xiii16) restrictions any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Indebtedness Incurred by a Restricted Subsidiary clauses (1) through (15) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in compliance with the covenant described under Section 3.9; providedgood faith judgment of the Company, that (A) such restrictions are not materially more restrictive with respect to such encumbrances encumbrance and other restrictions taken as a whole than those prior to such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementrefinancing.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary; provided that (x) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Issuer or any Restricted Subsidiary to other Debt incurred by the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 3.15(aThe provisions of the covenant described in paragraph (a) shall above will not apply to limitations, encumbrances or restrictions existing under or by reason of:
(i) applicable lawthe Notes (including Additional Notes), rulethis Indenture, regulation the Senior Credit Facilities and the security documents related thereto or orderby other indentures or agreements governing other Debt the Issuer incurs ranking equally with the Notes; provided that the encumbrances or restrictions imposed by such other indentures or agreements are not materially more restrictive, taken as a whole, than the encumbrances or restrictions imposed by this Indenture;
(ii) this Indenture;
(iii) any encumbrance agreements with respect to Debt of the Issuer or restriction any Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to an agreement in effect at or entered into on the Issue Date, provisions of Section 4.04 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings thereofof those agreements; provided, provided that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions are not materially less favorable, taken as a whole, to the holders of the Notes than those is customary in existence on the Issue Date comparable financings (as determined in good faith by the board of directors or a member of senior management of the Issuer’s );
(iii) any agreement in effect on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the board of directors or a member of senior managementmanagement of the Issuer);
(iv) customary non-assignment and similar provisions in contracts, leases and licenses entered into in the ordinary course of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenturebusiness;
(v) any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(viivi) customary restrictions imposed on any agreement for the transfer sale or other disposition of copyrighted the Capital Stock or patented materialsall or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ixvii) Liens permitted to be Incurred pursuant to the provisions of the covenant described incurred under Section 3.17 4.05 that limit the right of any person the debtor to transfer dispose of the assets subject to such Liens;
(viii) applicable law, rule, regulation or order or the terms of any governmental licenses, authorizations, concessions, franchises or permits;
(ix) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into the ordinary course of business;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitations are applicable only to the assets that are the subject of such agreements;
(xi) purchase money obligations and mortgage financings for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature discussed described in clause (iii) of Section 3.15(a) above on the property so acquired4.12(a)(iv);
(xixii) restrictions on cash or any customary Productive Asset Leases for Vessels, and other deposits imposed by customers under contracts or other arrangements entered into or agreed to assets used in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating business; provided that such encumbrance or restriction only extends to dividends the Vessel, or other distributions asset financed in respect of such joint venture or the securities, assets or revenues of such joint ventureProductive Asset Lease;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior managementany Qualified Securitization Financing; and
(xiv) net worth provisions in leases entered into by any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the Issuer agreements containing the encumbrances or any Restricted Subsidiary restrictions in the ordinary course foregoing clauses (b)(i) through (b)(xiii), or in this clause (b)(xiv); provided that the terms and conditions of business any such encumbrances or restrictions are not materially more restrictive less favorable, taken as a whole, to the holders of the Notes than those existing on under or pursuant to the Issue Date as determined in good faith by the Issuer’s senior managementagreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or replaced.
Appears in 1 contract
Samples: Indenture (Danaos Corp)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (ii) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
, or (iii) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (ia) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement the New Credit Agreement as in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; providedprovided that such amendments, that restatements, renewals, replacement or refinancings are no more restrictive in the aggregate with respect to such dividend and other payment restrictions than those contained in the New Credit Agreement (or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
refinancing, (ivb) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiaryapplicable law, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vc) any instrument governing Indebtedness or Capital Stock of an Acquired Person by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness not Incurred was incurred in connection with, or in anticipation or contemplation of, the relevant with such acquisition, merger or consolidation, which encumbrance or ); provided that (1) such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person, and (2) the consolidated net income of an Acquired Person or for any period prior to such acquisition shall not be taken into account in determining whether such acquisition was permitted by the properties or assets terms of the Person so acquired;
this Indenture, (vid) restrictions with respect to a Restricted Subsidiary by reason of the Issuer imposed pursuant to a binding agreement which has been customary non-assignment provisions in leases entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case ordinary course of Capital Stockbusiness and consistent with past practices, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xe) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that only impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
, (xif) restrictions on cash an agreement for the sale or other deposits imposed by customers under contracts disposition of the Capital Stock or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect assets of such joint venture or the securities, assets or revenues of Restricted Subsidiary; provided that such joint venture;
(xiii) restrictions in Indebtedness Incurred by a restriction is only applicable to such Restricted Subsidiary in compliance with or assets, as applicable, and such sale or disposition otherwise is permitted under the covenant described under Section 3.94.14, and provided further that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 270 days after such execution and delivery, (g) Refinancing Indebtedness permitted under this Indenture; provided, provided that (A) the restrictions contained in the agreements governing such restrictions Refinancing Indebtedness are not materially no more restrictive with respect in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause refinancing, (iiih) above as determined in good faith by the Issuer’s senior management Acquisition Agreement or (Bi) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementthis Indenture.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (ii) make loans or advances to, or make any Investment inissue Guarantees for the benefit of, the Issuer Company or any other Restricted Subsidiary; or
Subsidiary or (iii) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (ia) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement the Credit Facility as in effect at or entered into on the Issue Date, and any amendments, restatementsmodifications, renewals, refundings, replacements or refinancings thereof; providedprovided that such amendments, that modifications, renewals, refundings, replacements or refinancings are no more restrictive in the aggregate with respect to such dividend and other payment restrictions than those contained in the Credit Facility (or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
refinancing, (ivb) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiaryapplicable law, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(vc) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness not Incurred was incurred in connection with, with or in anticipation or contemplation ofof such acquisition); provided, the relevant acquisitionhowever, merger or consolidation, which that no such encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Acquired Person, (d) by reason of customary non-assignment, subletting or the properties net worth provisions in leases or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been other agreements entered into for the sale or disposition ordinary course of Capital Stock or assets of such Restricted Subsidiary; providedbusiness, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(xe) Purchase Money Indebtedness Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above only on the property so acquired;
, (xif) restrictions on cash an agreement for the sale or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course disposition of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture assets or the securities, assets or revenues Capital Stock of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9Subsidiary; provided, however, that such restriction or encumbrance is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted by Section 4.16; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 270 days after such execution and delivery, (Ag) Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in the agreements governing such restrictions Refinancing Indebtedness are not materially no more restrictive with respect in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing, (h) this Indenture, the Notes and the Guarantees and (i) encumbrances and restrictions imposed by amendments, restatements, renewals, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (a) through (h) above; provided that such encumbrances and restrictions are, in the good faith judgment of the Company's Board of Directors, no more restrictive, in any material respect, than those contained in such Restricted Subsidiary was subject contracts, instruments or obligations immediately prior to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management such amendment, restatement, renewal, replacement or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementrefinancing.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or Stock, (b) pay any Indebtedness or other obligation owed to the Issuer Company or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
, or (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason ofof any of the following:
(i) applicable lawthis Indenture, rulethe Collateral Documents, regulation or orderany Guarantee, the Securities, the Senior Credit Facilities, as originally executed, and any other agreement in effect on the Closing Date;
(ii) this Indentureapplicable law;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest interest, or of any contract, of the Company or any Restricted Subsidiary, or any customary restriction on relating to the ability property covered thereby and entered into in the ordinary course of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenturebusiness;
(viv) any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Company or any Restricted Subsidiary in existence at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(viv) restrictions any encumbrance or restriction contained in contracts for sales of assets permitted by Section 10.13 with respect to a Restricted Subsidiary of the Issuer imposed assets to be sold pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)contract;
(viivi) customary any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions imposed on in the transfer of copyrighted or patented materials;
foregoing clauses (viiii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause and (iii) or (v) of this Section 3.15(biv); provided, PROVIDED that such Refinancing agreement is not materially more restrictive with respect to the terms and conditions of any such encumbrances or restrictions are not less favorable in any material respect to the Holders of Securities than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property agreement so acquired;
(xi) restrictions on cash extended, renewed, refinanced or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Indenture (Baytex Energy LTD)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (ia) pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer Stock, or any other interest or participation in, or measured by, its profits, owned by the Company or by any Restricted Subsidiary Subsidiary, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
; (iib) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
or (iiic) transfer any of its property properties or assets to the Issuer Company or to any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to , except for such encumbrances or restrictions existing under or by reason of:
: (i) applicable law, rule, regulation or order;
; (ii) this Indenture;
; (iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
; (viv) any instrument governing Acquired Indebtedness not Incurred in connection with, of a person acquired by the Company or in anticipation or contemplation of, any Restricted Subsidiary at the relevant time of such acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Personperson, or the properties or assets of any Personperson, other than the Person person or the properties or assets of the Person its Subsidiaries so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing any written agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date or amendments or modifications thereto; provided that no such agreement shall be modified or amended in such a manner as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer encumbrance or any Restricted Subsidiary in the ordinary course of business not materially restriction more restrictive than those existing as in effect on the Issue Date Date; (vi) Indebtedness existing and as determined in good faith by effect on the Issuer’s senior managementIssue Date, including, without limitation, the New Senior Credit Facility or any refinancing, refunding, replacement or extensions thereof, provided that any such encumbrance or restriction contained in any refinancing, refunding, replacement or extension of the New Senior Credit Facility shall be no more restrictive than such encumbrance or restriction contained in the New Senior Credit Facility as in effect on the Issue Date; and (vii) Indebtedness incurred in accordance with this Indenture; provided that such encumbrance or restriction shall be no more restrictive than any encumbrance or restriction contained in the New Senior Credit Facility as in effect on the Issue Date.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer Company or any other Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make an Investment in the Company or any other Restricted Subsidiary or pay (d) transfer any Indebtedness owed of its Properties to the Issuer Company or any other Restricted Subsidiary;
(ii) make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or
(iii) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement except in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to each instance for such encumbrances or restrictions than those pursuant to (i) this Indenture, the Credit Facility or any other agreement in effect on the date of this Indenture, (ii) any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in existence on at the Issue Date as determined time of such acquisition (but not created in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any other Person, or the properties or assets Properties of any other Person, other than the Person Person, or the properties or assets Property of the Person Person, so acquired;
, (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(viiiii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant leases and licenses relating to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired Property covered thereby and entered into in the ordinary course of business or (iv) any agreement that extends, renews, refinances or replaces the agreements containing the restrictions in the foregoing clauses (i), (ii) and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) ), provided that the terms and conditions of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) any such restrictions are not materially more restrictive less favorable to the Holders of the Securities than those under or pursuant to the agreement so extended, renewed, refinanced or replaced, and except with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iiid) above as determined in good faith by the Issuer’s senior management or only, (Bi) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary restrictions in the ordinary course form of business Liens which are not materially more restrictive than those existing prohibited under Section 10.15 and which contain customary limitations on the Issue Date as determined transfer of collateral and (ii) with respect to clause (d) only, customary restrictions contained in good faith by asset sale agreements limiting the Issuer’s senior managementtransfer of such assets pending the closing of such sale.
Appears in 1 contract
Samples: Indenture (Nuevo Energy Co)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a1) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(b) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(iic) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
, provided that (i) applicable law, rule, regulation the priority of any Preferred Stock in receiving dividends or order;
liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (ii) this Indenture;
the subordination of (iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on including the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions application of any contract and customary provisions restricting assignment standstill requirements to) loans or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, advances made to the Issuer or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(2) The provisions of Section 4.14 described in paragraph (1) above shall not apply to:
(a) encumbrances and restrictions imposed by the Notes, this Indenture, the Guarantees, the Revolving Credit Facility, the Intercreditor Agreement and the Security Documents;
(b) encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantee thereof in accordance with Section 4.04 or pursuant to paragraph (2) of such Section 4.04; provided that in the ordinary course case of business any such encumbrances or restrictions imposed under any Credit Facilities, such encumbrances or restrictions are not materially more restrictive taken as a whole than those existing imposed by the Revolving Credit Facility as at the Issue Date;
(c) encumbrances or restrictions contained in any agreement in effect on the Issue Date as determined (other than an agreement described in good faith by another clause of this paragraph (2));
(d) with respect to restrictions or encumbrances referred to in clause (1)(d) above, encumbrances and restrictions: (i) that restrict in a customary manner the Issuer’s senior management.subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary is a party; and (ii) contained in operating leases for real property and restricting only the transfer of such real property upon
Appears in 1 contract
Samples: Indenture (InterXion Holding N.V.)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer Parent Guarantor or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer Parent Guarantor or any other Restricted Subsidiary.
(b) Section 3.15(aThe provisions of paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable lawencumbrances and restrictions imposed by the Notes, rulethe Existing Ardagh Bonds, regulation or order;
(ii) this Indenture;
, any Credit Facility, the indentures governing the Existing Ardagh Bonds, the Intercreditor Agreement (iii) or any encumbrance Additional Intercreditor Agreement), the Senior PIK Notes and the security documents related thereto or restriction pursuant to an agreement in effect at by other indentures or entered into on agreements governing other Debt Incurred ranking equally with the Issue Date, and any amendments, restatements, renewals, replacements Notes; provided that the encumbrances or refinancings thereof; provided, that any amendment, restatement, renewal, replacement restrictions imposed by such other indentures or refinancing is agreements are not materially more restrictive with respect to such restrictive, taken as a whole, than the encumbrances or restrictions than those in existence on the Issue Date imposed by this Indenture (as determined in good faith by the Issuer’s board of directors or a member of senior managementmanagement of the Parent Guarantor);
(ii) any customary encumbrances or restrictions created under any agreements with respect to Debt of the Parent Guarantor or any Restricted Subsidiary permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with such covenant; provided that such agreements do not prohibit the payment of interest with respect to the Notes or the Guarantees absent a default or event of default under such agreement;
(iii) encumbrances or restrictions contained in any agreement in effect on the Issue Date (other than an agreement described in another clause of this paragraph (b));
(iv) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, encumbrances and restrictions that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Parent Guarantor or any Restricted Subsidiary, or any customary restriction on the ability of Subsidiary is a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indentureparty;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person (including its Subsidiaries), acquired by the Parent Guarantor or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
acquired (vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, including its Subsidiaries);
(vi) encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by the provisions of Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Parent Guarantor’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted extent set forth in the security document or patented materialsany related document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted to be Incurred pursuant to encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the provisions ordinary course of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensbusiness;
(x) Purchase Money Indebtedness customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith by any Restricted Subsidiary; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary and its Subsidiaries and provided, further, that:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable agreements (as determined by the Parent Guarantor); and
(B) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the ability of the Issuers or any Guarantor to make any anticipated principal or interest payments on the Notes;
(xi) in the case of clause (a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementbusiness;
(xii) any encumbrance or restriction arising by reason of customary non-assignment provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint ventureagreements;
(xiii) encumbrances or restrictions with respect to any Permitted Receivables Financing; provided that such encumbrances or restrictions are customarily required by the institutional sponsor or arranger of such Permitted Receivables Financing in Indebtedness Incurred by similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(xiv) encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to a Permitted Joint Venture;
(xv) encumbrances or restrictions Incurred in compliance accordance with Section 4.07; or
(xvi) any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the covenant described under Section 3.9agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xv); provided, provided that (A) the terms and conditions of any such encumbrances or restrictions are not materially more restrictive with respect less favorable, taken as a whole, to such encumbrances and restrictions the Holders of the Notes than those such Restricted Subsidiary was subject under or pursuant to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management agreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall Publishing will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends or make any other distributions distribution on or in respect of its Capital Stock to the Issuer Publishing or any other Restricted Subsidiary or Subsidiary, (b) pay any Indebtedness owed to the Issuer Publishing or any other Restricted Subsidiary;
, (iic) make loans or advances to, or make any Investment in, the Issuer in Publishing or any other Restricted Subsidiary; or
(iiid) transfer any of its property properties or assets to Publishing or any Restricted Subsidiary, except (i) any encumbrance or restriction pursuant to or in connection with the Issuer New Bank Credit Facility or the FDTH Bank Credit Facility as in effect on the date of this Indenture or any other Restricted Subsidiary.
agreement in effect on the date of this Indenture (b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) applicable lawincluding the AP-91 Senior Notes), rule, regulation or order;
(ii) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary of Publishing on the date of this Indenture;
, in existence at the time such Person becomes a Restricted Subsidiary of Publishing and not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary, (iii) any encumbrance or restriction pursuant to an agreement or in effect at connection with documents existing or entered into on the Issue Date, and securing any amendments, restatements, renewals, replacements or refinancings thereof; provided, Foreign Subsidiary Indebtedness that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to than the terms of any such encumbrances or restrictions than those in existence existing on the Issue Date date of the Indenture or the date such Subsidiary becomes a Restricted Subsidiary, as determined in good faith by the Issuer’s senior management;
an officer of Publishing, (iv) customary non-assignment provisions encumbrances or restrictions entered into by Southam in connection with Indebtedness of Southam Incurred at a time when Southam is a Public Entity, (v) encumbrances or restrictions contained in the terms of any contract and Mirror Preferred, provided that such Mirror Preferred continues to quality as such under the definition thereof, (vi) customary provisions restricting subletting or assignment or subletting in of any lease governing a leasehold interest of Publishing or any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
and (vvii) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to existing under any Personagreement that extends, renews, refinances or replaces the properties agreements containing the encumbrances or assets of any Personrestrictions in the foregoing clauses (i), (ii) and (iii) (other than the Person or the properties or assets of the Person so acquired;
(vi) restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and covenants in the case of Capital Stock, its Subsidiaries);
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(bAP-91 Senior Notes); provided, provided that such Refinancing agreement is not materially more restrictive with respect to the terms and conditions of any such encumbrances or restrictions are not materially less favorable to the Holders than those contained in the agreement referred to in such clause (iii) under or (v) as determined in good faith by the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of agreement evidencing the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash extended, renewed, refinanced or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementreplaced.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Hollinger International Publishing Inc)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness Debt owed to the Issuer or any other Restricted Subsidiary;
(iiiii) make loans or advances to, or make any Investment in, to the Issuer or any other Restricted Subsidiary; or
(iiiiv) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) The provisions of the covenant described in paragraph Section 3.15(a) 4.16 above shall not apply to encumbrances or restrictions existing under or by reason ofto:
(i) applicable law, rule, regulation or orderencumbrances and restrictions imposed by the Notes and the Indenture;
(ii) any encumbrances or restrictions created under any agreements with respect to Debt of the Issuer or a Restricted Subsidiary permitted to be Incurred subsequent to the date of this IndentureIndenture pursuant to the provisions of Section 4.06, including encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantees thereof in accordance with such Section; provided that, in the judgment of the Issuer, such agreements will not materially impair the Issuer’s ability to make payments under the Notes when due;
(iii) encumbrances or restrictions contained in any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including the Senior Credit Facility and any amendmentsthe Existing DGL Indentures, restatementsthe Existing DGL Notes, renewals, replacements or refinancings the Digicel Limited Notes and the Digicel Limited Indentures and the related guarantees thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, encumbrances and restrictions: (A) that restrict in a customary non-manner the subletting, assignment provisions or transfer of any contract and customary provisions restricting assignment properties or subletting in any lease governing assets that are subject to a leasehold interest of lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary, or any customary restriction on Subsidiary is a party; and (B) contained in operating leases for real property and restricting only the ability transfer of such real property upon the occurrence and during the continuance of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, default in each case permitted to be Incurred under this Indenturethe payment of rent;
(v) encumbrances or restrictions contained in any agreement or other instrument governing Acquired Indebtedness of a Person acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
(vi) encumbrances or restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into contained in contracts for the sale or disposition sales of Capital Stock or assets permitted by the provisions of such Restricted Subsidiary; provided, that such restrictions apply solely Section 4.09 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries)Issuer’s Subsidiaries by another Person;
(vii) with respect to restrictions or encumbrances referred to in clause (a)(iv) above, any customary encumbrances or restrictions imposed on pertaining to any asset or property subject to a Lien to the transfer of copyrighted or patented materialsextent set forth in the security document governing such Lien;
(viii) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) imposed by applicable law or (v) as determined in good faith regulation or by the Issuer’s senior managementgovernmental licenses, concessions, franchises or permits;
(ix) Liens permitted any encumbrances or restrictions existing under any agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (b)(i), (ii) and (iii); provided that the terms and conditions of any such encumbrances or restrictions are not materially less favorable, taken as a whole, to be Incurred the Holders than those under or pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liensagreement so extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or replaced;
(x) Purchase Money Indebtedness encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;
(xi) customary limitations on the distribution or disposition of assets or property in joint venture agreements entered into the ordinary course of business and in good faith; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary;
(xii) in the case of clause (a)(iv) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;business; or
(xiii) restrictions in Indebtedness Incurred any encumbrance or restriction arising by a Restricted Subsidiary in compliance with the covenant described under Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth reason of customary non-assignment provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior managementagreements.
Appears in 1 contract
Samples: Indenture (Digicel Group LTD)
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in clause (b) below, the Issuer shall The Company will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of the Company to (ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary interest or participation in, or measured by, its profits, (b) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
Subsidiary of the Company, (iic) make loans or advances to, or make any Investment in, to the Issuer Company or any other Restricted Subsidiary; or
Subsidiary of the Company, (iiid) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
Subsidiary of the Company or (be) Section 3.15(a) shall not apply to guarantee any Indebtedness of the Company or any other Restricted Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of:
of (i) applicable law, rule, regulation or order;
(ii) this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of the Company or any Restricted SubsidiarySubsidiary of the Company, (iii) any agreement or other instrument of a Person acquired by the Company or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, of the Company in each case permitted to be Incurred under this Indenture;
existence at the time of such acquisition (v) any instrument governing Acquired Indebtedness but not Incurred created in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidationthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, (viiv) any agreement in existence on the Closing Date (to the extent of any encumbrances or restrictions with respect to a in existence thereunder on the Closing Date) and (v) any agreement providing for the incurrence of Indebtedness of Restricted Subsidiary of the Issuer imposed Subsidiaries pursuant to a binding agreement which has been entered into for the sale either clause (x) of paragraph (b) of Section 1010 or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);
clause (vii) customary restrictions imposed on of the transfer definition of copyrighted or patented materials;
Permitted Subsidiary Indebtedness; provided that any Restricted Subsidiary (viiiincluding, without limitation, FEEL) an agreement governing Indebtedness Incurred that becomes subject to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this Section 3.15(b); provided, that such Refinancing agreement is not materially more restrictive with respect to any such encumbrances or restrictions than those contained in the agreement referred pursuant to in such this clause (iii) or (v) as determined in good faith by shall Guarantee the Issuer’s senior management;
(ix) Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;
(x) Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of Section 3.15(a) above on the property so acquired;
(xi) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;
(xii) customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;
(xiii) restrictions in Indebtedness Incurred by a Restricted Subsidiary Securities in compliance with the covenant described under provisions of paragraph (b) and clauses (i) and (ii) of paragraph (a) of Section 3.9; provided, that (A) such restrictions are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) such Incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due as determined in good faith by the Issuer’s senior management; and
(xiv) net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management1017.
Appears in 1 contract
