Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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); (2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable; (iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased; (v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; (vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; (viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction; (ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses; (x) restrictions relating to any Lien permitted under this Indenture; (xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction; (xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”; (xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and (xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 4 contracts
Samples: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC), Indenture (Davita Healthcare Partners Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor will not, and will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Parent Guarantor 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);
(2) make any loans or advances to the Company Parent Guarantor or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Parent Guarantor or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph or this clause (iiivi); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes Securities than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (i3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date Parent Guarantor or the date such Restricted Subsidiary became a Restricted Subsidiary to the extent such encumbrances or was acquired (whether by mergerrestrictions restrict the transfer of the property subject to such mortgages, consolidation, acquisition of Capital Stock pledges or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableother security agreements;
(ivc) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leasedacquired;
(vix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vix) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(viixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixii) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other governing Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case Parent Guarantor or any of its Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness permitted to be Incurred pursuant to an agreement entered into subsequent to the definition Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of “Permitted Indebtedness”Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the case ordinary course of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiarybusiness; and
(xivxvi) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 4 contracts
Samples: Indenture (ANTERO RESOURCES Corp), Indenture (Antero Resources LLC), Indenture (Antero Resources LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2However, Section 4.10(a) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (i12) or (ii) of this paragraph or this clause (iii6) of this Section 4.10(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of Section 4.10(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.10(a) on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.07; provided, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partythe Company taken as a whole, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without as determined by the consent Board of Directors of the holders Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such Preferred Stock is permitted pursuant to Section 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictionssupplements, encumbrancesrefundings, replacements or refinancing thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 4 contracts
Samples: Indenture (SM Energy Co), Indenture (SM Energy Co), Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2However, Section 5.10(a) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 5.10(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (i12) or (ii) of this paragraph or this clause (iii6) of this Section 5.10(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of Section 5.10(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 5.10(a) on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 5.07; provided, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partythe Company taken as a whole, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without as determined by the consent Board of Directors of the holders Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such Preferred Stock is permitted pursuant to Section 5.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictionssupplements, encumbrancesrefundings, replacements or refinancing thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 4 contracts
Samples: Fifth Supplemental Indenture (SM Energy Co), Fourth Supplemental Indenture (SM Energy Co), Third Supplemental Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Parent Guarantor will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, 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 (1a) pay dividends or make any other distributions to the Parent Guarantor or any of its Restricted Subsidiaries on its Capital Stock or pay with respect to any Indebtedness other interest or other obligations owed to the Company participation in, or any Restricted Subsidiary measured by, its profits (it being understood that the priority of any Preferred Stock Incurred in accordance with the Indenture in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Capital Stock shall not be deemed to be a restriction on the ability to make distributions on Capital Stock);
, (2b) pay any Indebtedness owed to the Issuer or any Note Guarantor, (c) make any loans or advances to the Company Parent Guarantor or any of its Restricted Subsidiary Subsidiaries (it being understood that the subordination of loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
) or (3d) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any of its Restricted Subsidiary (Subsidiaries it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) clauses (a) purchase money obligations for property acquired in the ordinary course of business), (b) Capitalized Lease Obligations permitted under this Indenture, or (c) industrial revenue bonds or (d) operating leasesof this paragraph, except in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into case for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;of:
(ix1) customary contractual encumbrances or restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) Credit Facility and related documentation and other agreements or instruments in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing effect or entered into on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, ;
(2) on dividend payments this Indenture, the Notes, the Note Guarantees and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), Security Documents;
(3) limiting transactions any agreement or instrument of a Person acquired, directly or indirectly, by the Parent Guarantor as in effect at the time of such acquisition (to the extent such agreement or instrument was not entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person or the Company properties or another Subsidiary to those with terms that are fair assets of any Person other than the Person, or property and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partyassets of the Person, and so acquired;
(4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements supplements or refinancings Refinancings of the contracts, instruments or obligations those agreements referred to in clauses (i1), (2) through or (xiii3) aboveof this paragraph or this clause (4); provided provided, however, that such the amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements supplements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no Refinancings are not materially more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior contained in those agreements on the Issue Date or, in the case of the Credit Facility, on its effective date or the date such Person was acquired, whichever is applicable;
(5) applicable law, rule, regulation or order;
(6) any agreement effecting a Refinancing of Indebtedness, provided, however, that the encumbrances and restrictions contained in any such Refinancing agreement or instrument or other amendment, modification, supplement, restatement, renewal or replacement are not materially more restrictive, taken as a whole, than those contained in such predecessor agreements or instruments;
(7) any agreement entered into for the sale or disposition of all or substantially all the Equity Interest or assets of a Restricted Subsidiary pending the closing of such sale or disposition;
(8) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents for a joint venture and other similar agreements entered into in the ordinary course of business which limitation is applicable only to the assets that are the subject of such agreements;
(9) restrictions on cash, cash equivalents, marketable securities, investment grade securities or other deposits or net worth imposed by insurers, sureties, bonding companies, suppliers, customers or lessors under contracts or leases entered into in the ordinary course of business;
(10) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted under Section 4.03 if, as determined by the Board of Directors, the encumbrances or restrictions (i) are customary for such type of agreement and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability to make required payments on the Notes;
(11) customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(12) customary nonassignment provisions in any contracts or licenses or subleases to the extent such provisions restrict the transfer of such contract or license or any rights or property thereunder;
(13) on cash or other deposits or covenants to maintain net worth, total assets or liquidity and similar financial responsibility covenants under contracts with customers and suppliers in the ordinary course of business;
(14) any Liens permitted to be incurred pursuant to Section 4.05 that limit the right of the debtor to dispose of the assets subject to such amendment Liens; and
(15) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or refinancingleased.
Appears in 4 contracts
Samples: Indenture (Enduro SpA), Indenture (Emeco Parts Pty LTD), Indenture (Emeco Parts Pty LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Issuer or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Issuer or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuer determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors or the principal financial officer of the Issuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph or this clause (iiivi); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (i3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date Issuer or the date such Restricted Subsidiary became a Restricted Subsidiary to the extent such encumbrances or was acquired (whether by mergerrestrictions restrict the transfer of the property subject to such mortgages, consolidation, acquisition of Capital Stock pledges or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableother security agreements;
(ivc) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Finance Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leasedacquired;
(vix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vix) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(viixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixii) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other governing Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case Issuer or any of its Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness permitted to be Incurred pursuant to an agreement entered into subsequent to the definition Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Issuer taken as a whole, as determined by the Board of “Permitted Indebtedness”Directors or the principal financial officer of the Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the case ordinary course of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiarybusiness; and
(xivxvi) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 3 contracts
Samples: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, 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:
(1a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Borrower 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 and any subordination of any such Indebtedness or other obligations being deemed not be deemed a restriction on the ability to make distributions on Capital Stockconstitute such encumbrances or restrictions);
(2b) make any loans or advances to the Company Borrower or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Company Borrower or any Restricted Subsidiary shall being deemed not be deemed a restriction on the ability to make loans constitute such an encumbrance or advancesrestriction); or
(3c) transfer any of its property or assets to the Company Borrower or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Agreement, including, without limitation, this Indenturethe First Lien Credit Agreements, the indenture governing the Second Lien Notes issued thereunder and the Guarantees thereof, supplemental indentures governing the Existing Notes and the Guarantees thereof and the related indentures and the New Senior Credit Facilities, in each case, as Notes in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such the Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary Borrower (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company Borrower or in contemplation of the transactiontransaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Borrower or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Lenders than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (ac) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business, business and (bB) Capitalized Capital Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesAgreement, in each case, that impose encumbrances or restrictions of the nature described in clause (3c) of the first paragraph of this Section 4.14 9.05 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) customary non-assignment encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Company Borrower or any Restricted Subsidiary in the ordinary course of business;; and
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 3 contracts
Samples: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Indenture in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Issuer or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Issuer or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuer determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Issuer);
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph or this clause (iiivi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(ivvii) in the case of clause (3) of the first paragraph of this Section 4.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(d) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(e) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.13 on the property so acquired or leasedacquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 3 contracts
Samples: Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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 (1a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the 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 Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
, (2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
) or (3c) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Subsidiary, except:
(1) or with respect to clauses (2a), (b) aboveand (c). The preceding provisions will not prohibit:,
(iA) any encumbrance or restriction pursuant to an agreement (including the Priority Lien Credit Agreement) in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iA), (B) or (iiI) of clause (1) of this paragraph Section 4.05 or this clause (iiiC) or contained in any amendment to an agreement referred to in clause (A), (B) or (I) of clause (1) of this Section 4.05 or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement refinancing agreement or refinancing amendment are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, not materially less favorable, taken as a whole, to the Holders of the Notes Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(vD) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viE) customary non-assignment provisions in leases and any encumbrance or restriction on the disposition or distribution of assets or property, including cash or other deposits, under agreements entered into by in the ordinary course of the Oil and Gas Business of the types described in clause (2) of the definition of Permitted Business Investments;
(F) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(G) customary 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 in the ordinary course of business;
(viiH) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies; and
(I) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany Restricted Subsidiary permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.03; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Company taken as a whole, as determined by the Board of Directors of the Company in good faith, than the provisions contained in the Priority Lien Credit Agreement or in this Indenture as in effect on the Issue Date.
(2) on dividend payments with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary subletting, nonassignment or transfer provisions in leases, licenses, similar agreements, operating agreements or other agreements customary in the Oil and other distributions solely Gas Business to permit pro rata dividends and other distributions in respect of any Capital Stock of the extent such Subsidiary (taking into account provisions restrict the relative preferences, if any, transfer of the various classes lease, license or series similar agreement or the property subject thereto;
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness to the extent such encumbrance or restriction restricts the transfer of Capital Stock the property subject to such security agreements or mortgages;
(C) pursuant to customary provisions restricting dispositions of such Subsidiary), (3) limiting transactions with real property interests set forth in any reciprocal easement agreements of the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such any Restricted Subsidiary; and
(xivD) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, provisions with respect to such encumbrances the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and restrictions than those prior to such amendment or refinancingother agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business.
Appears in 3 contracts
Samples: Indenture (Petroquest Energy Inc), Indenture (PetroQuest Energy, L.L.C.), Indenture (Petroquest Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Indenture in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Issuer or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company Issuer or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuer determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Issuer);
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph or this clause (iiivi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(ivvii) in the case of clause (3) of the first paragraph of this Section 4.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(d) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(e) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.13 on the property so acquired or leasedacquired;
(vix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vix) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(viixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;; and
(xii) the Senior Secured Credit Agreement as in the case effect as of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contractsthereof, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Samples: Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The (a) Neither the Company will notnor the Issuer shall, and will not nor shall they permit any Restricted Subsidiary to, create directly or otherwise cause indirectly, enter into, incur or permit to exist or become effective any agreement or other consensual encumbrance arrangement that prohibits, restricts or consensual restriction on imposes any condition upon the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on with respect to any of its Capital Stock Equity Interests to the Company, the Issuer or pay any Restricted Subsidiary or repay Indebtedness or other obligations owed to the Company Company, 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 common stock shall not be deemed a restriction on the ability to make distributions on Capital StockEquity Interests);
(2) make any loans or advances to the Company Company, the Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Company, the Issuer or any of the Restricted Subsidiary Subsidiaries to other Indebtedness Incurred by the Company Company, the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans pay any Indebtedness or advancesother Obligations); or
(3) sell, lease or transfer any of its property or assets to the Company Company, the Issuer or any Restricted Subsidiary Subsidiary;
(it being understood that such transfers shall b) The foregoing provision will not include any type of transfer described in clause apply:
(1) or in the case of Sections 4.6(a)(1), (2) aboveand (3). The preceding provisions will not prohibit, to:
(iA) restrictions and conditions imposed by law, rule, regulation or order or by the Notes, the Note Guarantees or this Indenture or any encumbrance agreement or restriction pursuant document evidencing Refinancing Indebtedness in respect of the Notes; provided that the restrictions and conditions contained in any such agreement or document, taken as a whole, are not less favorable in any material respect to an agreement the Holders than the restrictions and conditions imposed by this Indenture;
(B) restrictions and conditions, including those imposed by the Revolving Credit Agreement and related documentation, the BNDES Loans and related documentation and other agreements or instruments, as in effect at or entered into on the Issue Date;
(C) in the case of any Person that is not a wholly owned subsidiary, including, without limitation, this Indenturerestrictions and conditions imposed by its organizational documents or any related joint venture or similar agreements; provided that such restrictions and conditions apply only to such Person and its subsidiaries and to the Equity Interests of such Person and its subsidiaries;
(D) customary restrictions and conditions contained in agreements relating to the sale of all or a portion of the Equity Interests of a Restricted Subsidiary or any assets of the Company, the Notes issued thereunder Issuer or any Restricted Subsidiary, in each case pending such sale; provided that such restrictions and conditions apply only to such Restricted Subsidiary and its subsidiaries or the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilitiesassets that are to be sold and, in each case, as in effect on such datesale is permitted under this Indenture;
(iiE) restrictions and conditions existing on the Issue Date (or any encumbrance extension or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration inrenewal of, or to provide all any amendment, modification or any portion of replacement, not expanding the funds utilized to consummatescope of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance restriction or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitioncondition);
(iiiF) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement or instrument referred to in clause Sections 4.6(b)(1)(A), (iB) or (ii) of this paragraph or this clause (iiiE); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of an executive officer of the Company’s Board , not materially more restrictive, when taken as a whole, than the encumbrances and restrictions contained in the agreements referred to in Sections 4.6(b)(1)(A), (B) or (E);
(G) (i) other Indebtedness Incurred, or Preferred Stock or Disqualified Equity Interests issued, in each case, in accordance with Section 4.4 that, in the good faith judgment of Directors or Senior Managementan executive officer of the Company, no are not materially more materially restrictive, taken as a whole, than those applicable to the Company in this Indenture on the Distribution Date (which results in encumbrances or restrictions at a Restricted Subsidiary level or at the Issuer comparable to those applicable to the Company) or (ii) other Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.4; provided that with respect to clause (ii), such encumbrances or restrictions will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of an executive officer of the Company at the time such encumbrances or restrictions are entered into);
(H) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(I) any encumbrance or restriction effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Issuer, is necessary or advisable to effect such Qualified Receivables Financing; and
(J) restrictions and conditions imposed by any agreement relating to Indebtedness of any Person (other than those prior an Unrestricted Subsidiary) in existence at the time such Person became a Restricted Subsidiary and otherwise permitted under Section 4.4(b)(7), if such restrictions and conditions apply only to such amendment Restricted Subsidiary;
(2) in the case of Section 4.6(a)(3), to:
(A) customary provisions in leases, licenses and similar agreements restricting the subletting, assignment or refinancingtransfer of the property subject to such lease, license or similar agreement; and
(B) security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages.
Appears in 2 contracts
Samples: Indenture (Alcoa Upstream Corp), Indenture (Alcoa Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions on its Capital Stock or pay any Indebtedness Debt or other obligations obligation owed to the Company or any other Restricted Subsidiary (it being understood that of 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)Company;
(2ii) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that of the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Company; or
(3iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary of the Company.
(it being understood that such transfers b) The foregoing limitations shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibitapply to:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, Date (including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and under the Senior Secured Credit FacilitiesAgreements, related Hedging Obligations and Cash Management Services), and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially less favorable, taken as a whole, than those contained in each case, such agreements as in effect on such datethe Issue Date, as determined in good faith by the senior management or Board of Directors of the Company;
(ii) any encumbrance or restriction existing under or by reason of Debt Incurred pursuant to Sections 4.08 and 4.10 provided that (x) 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 Debt or agreement or (B) the Company determines at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction, that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes and any other Debt as they become due in the ordinary course that is an obligation of the Company and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as determined by senior management or the Board of Directors of the Company in good faith at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Debt Incurred or Preferred Stock or Indebtedness Incurred issued by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a any other Restricted Subsidiary (of the Company and outstanding on such date, other than Capital Debt Incurred or Preferred Stock or Indebtedness that was Incurred issued as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than of the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionCompany;
(iiiiv) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or Preferred Stock issued without violation of this Indenture or effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or a refinancing of Debt Incurred or Preferred Stock issued pursuant to an agreement referred to in clause (i) or Section 4.12(b)(i), (ii) of this paragraph or (iii) or this clause Section 4.12(b)(iv) or contained in any amendment to an agreement referred to in Section 4.12(b)(i), (iiiii) or (iii) or this Section 4.12(b)(iv); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, are not materially less favorable to the Holders Holders, as determined in good faith by the senior management or Board of Directors of the Notes Company, than those existing immediately prior to the encumbrances and restrictions contained entry into such agreement, refinancing agreement or amendment;
(v) in such agreements referred the case of Section 4.12(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to in clause (i) a lease, license, conveyance or (ii) of this paragraph on the Issue Date contract or similar property or asset or the date assignment of any such Restricted Subsidiary became a Restricted Subsidiary lease, license or was acquired other contract;
(whether by merger, consolidation, acquisition of Capital Stock or otherwiseB) 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 a any of its Restricted Subsidiary, whichever is applicableSubsidiaries not otherwise prohibited by this Indenture;
(ivC) that is included in a licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement;
(aD) purchase money obligations for property acquired arising or agreed to in the ordinary course of businessbusiness and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined in good faith by senior management or the Board of Directors of the Company; and
(bE) Capitalized Lease Obligations permitted under contained in security agreements, mortgages or similar documents securing Debt of a Restricted Subsidiary of the Company incurred in accordance with this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose Indenture to the extent those encumbrances or restrictions restrict the transfer of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedsubject to such security agreements;
(vvi) any restriction with respect to a Restricted Subsidiary (of the Company or any of its property properties or assets) assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or the property or assets that are subject to such restrictionotherwise) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulelaw, regulation or order;
(viii) customary any encumbrance or restriction under Capitalized Lease Obligations and purchase money obligations for property leased or acquired in the ordinary course of business that impose encumbrances or restrictions existing under of the nature described in Section 4.12(a)(iii) on the property so leased or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transactionacquired;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing provisions in joint venture agreements or arrangements and assignment of intellectual property and of intellectual property licensesother similar agreements or arrangements relating solely to joint ventures;
(x) restrictions relating to any Lien permitted on cash or other deposits or net worth imposed by customers under this Indenture;contracts entered into in the ordinary course of business; and
(xi) restrictions created in connection with any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings areFacility that, in the good faith judgment determination of senior management or the Board of Directors of the Company’s Board of Directors , are necessary or Senior Management, no more materially restrictive, taken as a whole, with respect advisable to effect such encumbrances and restrictions than those prior to such amendment or refinancingReceivables Facility.
Appears in 2 contracts
Samples: Indenture (JBS Holding Luxembourg S.A R.L.), Indenture (JBS Holding Luxembourg S.A R.L.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The (a) Except as provided in Section 3.10(b), the Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any other 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)Subsidiary;
(2ii) make any loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers b) Section 3.10(a) shall not include any type apply to encumbrances or restrictions existing as of transfer described in clause (1) the Issue Date or (2) above). The preceding provisions will not prohibitotherwise under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateapplicable law;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionCollateral Documents;
(iii) any encumbrance agreements governing any First Priority Lien Obligations or Second Priority Lien Obligations (including this Indenture and the First Lien Notes Indenture);
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) existing with respect to a any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any of its Restricted Subsidiary pursuant Subsidiaries, which encumbrances or restrictions (1) are not applicable to an agreement effecting an amendmentany other Person or the property or assets of any other Person and (2) were not put in place in anticipation of such event and any extensions, restatementrenewals, modification, renewal, increase, refunding, replacement replacements or refinancing refinancings of an agreement referred to in clause (i) or (ii) any of this paragraph or this clause (iii)the foregoing; provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modificationthe extension, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableare, taken as a whole, no less favorable in any material respect to the Holders of the Notes than the encumbrances and or restrictions contained in such agreements referred to in clause (i) being extended, renewed, replaced or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablerefinanced;
(ivvi) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any one of its property or assets) the Company’s Subsidiaries and imposed pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock of, or property and assets of of, such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into is permitted by the Company or any Restricted Subsidiary in the ordinary course of businessSection 3.7;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment transfer of intellectual property and of intellectual property licenses;copyrighted or patented materials; or
(xviii) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments an agreement governing Indebtedness Incurred to refinance the Indebtedness issued, assumed or Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary Section 3.10(b)(iii); provided, that such refinancing agreement is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no materially more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and or restrictions than those prior contained in the agreements governing the Indebtedness referred to such amendment or refinancingin Section 3.10(b)(iii).
Appears in 2 contracts
Samples: Indenture (Inmobiliaria Montes Urales 460 S a De C V), Indenture (Iusacell S a De C V)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other 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)Subsidiary;
(2) make any 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 Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) transfer any of its property or assets Property to the Company or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall b) The foregoing limitations will not include any type of transfer described in clause apply:
(1) or with respect to clauses (1), (2) aboveand (3) of paragraph (a). The preceding provisions will not prohibit:, to restrictions
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;,
(iiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by and existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or Company,
(C) relating to the Senior Credit Facility,
(D) created in contemplation connection with any Receivables Facility that, in the good faith determination of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property Board of Directors of the Company Company, are necessary or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by advisable to effect such Restricted Subsidiary after its date of acquisition;Receivables Facility, or
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary that result from the Refinancing of Debt incurred pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i1)(A), (B) or (iiC) of this paragraph above or this in clause (iii)2)(A) or (B) below, PROVIDED such restriction is no less favorable to the holders of Notes than those under the agreement evidencing the Debt so Refinanced; provided, however, that the encumbrances and restrictions and
(2) with respect to such Restricted clause (a)(3) only, to restrictions
(A) relating to Debt that is permitted to be incurred and secured without also securing the Notes or the applicable Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in Guarantee pursuant to Sections 4.06 and 4.09 that limit the good faith judgment right of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, debtor to the Holders dispose of the Notes than Property securing such Debt,
(B) encumbering Property at the encumbrances and restrictions contained in time such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or Property was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in Subsidiary, so long as such restriction relates solely to the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required Property so acquired and was not created in connection with the entering into or in anticipation of such transaction;acquisition,
(ixC) resulting from customary restrictions imposed on the transfer, licensing, sub-licensing and provisions restricting subletting or assignment of intellectual property and leases or customary provisions in other agreements that restrict assignment of intellectual property licenses;such agreements or rights thereunder or
(xD) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to customarily contained in asset sale agreements limiting the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock transfer of such Subsidiary (taking into account Property pending the relative preferences, if any, of the various classes or series of Capital Stock closing of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingsale.
Appears in 2 contracts
Samples: Indenture (Paxson Communications Corp), Indenture (Paxson Communications Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The (a) Except as provided in Section 3.10(b), the Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any other 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)Subsidiary;
(2ii) make any loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers b) Section 3.10(a) shall not include any type apply to encumbrances or restrictions existing as of transfer described in clause (1) the Issue Date or (2) above). The preceding provisions will not prohibitotherwise under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateapplicable law;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionCollateral Documents;
(iii) any encumbrance agreements governing any First Priority Lien Obligations or Second Priority Lien Obligations (including this Indenture and the Second Lien Notes Indenture);
(iv) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(v) existing with respect to a any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any of its Restricted Subsidiary pursuant Subsidiaries, which encumbrances or restrictions (1) are not applicable to an agreement effecting an amendmentany other Person or the property or assets of any other Person and (2) were not put in place in anticipation of such event and any extensions, restatementrenewals, modification, renewal, increase, refunding, replacement replacements or refinancing refinancings of an agreement referred to in clause (i) or (ii) any of this paragraph or this clause (iii)the foregoing; provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modificationthe extension, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableare, taken as a whole, no less favorable in any material respect to the Holders of the Notes than the encumbrances and or restrictions contained in such agreements referred to in clause (i) being extended, renewed, replaced or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablerefinanced;
(ivvi) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any one of its property or assets) the Company’s Subsidiaries and imposed pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock of, or property and assets of of, such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into is permitted by the Company or any Restricted Subsidiary in the ordinary course of businessSection 3.7;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment transfer of intellectual property and of intellectual property licenses;copyrighted or patented materials; or
(xviii) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments an agreement governing Indebtedness Incurred to refinance the Indebtedness issued, assumed or Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary Section 3.10(b)(iii); provided, that such refinancing agreement is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no materially more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and or restrictions than those prior contained in the agreements governing the Indebtedness referred to such amendment or refinancingin Section 3.10(b)(iii).
Appears in 2 contracts
Samples: Indenture (Mexican Cellular Investments Inc), Indenture (Iusacell S a De C V)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Issuer or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to restrictions:
(i) any encumbrance or restriction pursuant to an agreement (a) in effect at or entered into on the Issue Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder Credit Agreement and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateIndentures;
(ii) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionIssuer;
(iii) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph above, in clause (vi), (vii) or (x) below or this clause (iii); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the CompanyIssuer’s Board of Directors or Senior Management, materially less favorableDirectors), taken as a whole, to than the Holders restrictions of the Notes than the encumbrances and restrictions same type contained in such the agreements or instruments referred to in clause clauses (i), (ii), (vi), (vii) or (iix) of or this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired clause (whether by mergeriii), consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (aas determined in good faith by the Issuer’s Board of Directors) purchase money obligations for than the restrictions of the same type contained in this Indenture;
(v) existing by reason of applicable law, rule, regulation or order;
(vi) with respect to clause (c) above only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;
(vii) encumbering Property at the time the Property was acquired by the Issuer or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(viii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property acquired licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(ix) which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, (b) Capitalized Lease Obligations which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesprovided, in each casehowever, that impose encumbrances or the Issuer’s Board of Directors determines in good faith that such restrictions of are not reasonably likely to impair the nature described in clause Issuer’s ability to make principal and interest payments on the Notes; or
(3xi) of the first paragraph existing by reason of this Section 4.14 on Indenture, the property so acquired or leasedNotes, and the Note Guarantees;
(vxii) any restriction with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viixiii) encumbrances on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xiixiv) in the case of the provision described in clause (c) of the first paragraph of this covenant: arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant thereof in any manner material to the definition of “Permitted Indebtedness”Issuer or any Restricted Subsidiary thereof;
(xiiixv) contained in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such SubsidiaryHedging Obligations; and
(xivxvi) any encumbrances or constituting customary restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior a Securitization Subsidiary, pursuant to such amendment or refinancingthe terms of a Permitted Receivables Financing.
Appears in 2 contracts
Samples: Indenture (Energizer Holdings, Inc.), Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary (other than Excluded Project Subsidiaries) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than Excluded Project Subsidiaries) to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries), 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries), it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (other than any Excluded Project Subsidiary) (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will .
(b) Section 4.09(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions pursuant to an agreement any Debt Facility and related documentation and other agreements or instruments in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii2) the Indenture and the Notes;
(3) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was Person acquired by the Company or any of its Restricted Subsidiaries in contemplation existence at the time of the transaction) and outstanding on such date; provided that any such acquisition, which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Company or any other Restricted Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquired and property (including after-acquired by such Restricted Subsidiary after its date of acquisitionproperty);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment case of Section 4.09(a)(3), Liens permitted to be Incurred under Section 4.05 that limit the right of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, debtor to the Holders dispose of the Notes than the encumbrances and restrictions contained in assets securing such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableIndebtedness;
(iv) (a5) purchase money obligations for property acquired in the ordinary course of business, (b) business and Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.09(a)(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v6) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) any customary non-assignment provisions in leases joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(9) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii11) customary encumbrances applicable law or restrictions existing under any applicable rule, regulation or by reason of provisions in joint venture, partnership order;
(limited 12) any encumbrance or general), limited liability company or similar agreements required restriction effected in connection with a Qualified Receivables Financing that, in the entering into good faith determination of the Issuers, is necessary or advisable to effect such transactionQualified Receivables Financing, as applicable;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi13) any encumbrance or restriction contained in other Indebtedness Indebtedness, Disqualified Stock or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject Preferred Stock of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of Company or any Restricted Subsidiary that is Incurred subsequent to the Issue Date pursuant to Section 4.03; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not a Subsidiary Guarantor, restrictions under materially affect the constitutive documents governing such Subsidiary: (A) with respect Company’s ability to Subsidiaries, existing make anticipated principal or interest payments on the Issue Date; Notes (as determined by the Company in good faith) or (ii) such encumbrances and (B) with respect restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to Subsidiaries created the holders of the Notes, taken as a whole, than the encumbrances and restrictions contained in the Indenture or acquired after the Senior Credit Facility as of the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of as determined by the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiarygood faith), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv14) any encumbrances amendment, restatement, modification, renewal, supplement, refunding, replacement or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings refinancing of the contracts, instruments or obligations an agreement referred to in clauses (i1) through (xiii13) aboveof this Section 4.09(b) or this clause (14); provided provided, however, that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no not materially more materially restrictive, taken as a whole, with respect to such than the encumbrances and restrictions than those prior contained the agreements referred to in clauses (1) through (13) of this Section 4.09(b) existing on the Issue Date or the date such amendment Restricted Subsidiary became a Restricted Subsidiary or refinancingwas merged into a Restricted Subsidiary, whichever is applicable.
Appears in 2 contracts
Samples: Seventh Supplemental Indenture (Covanta Holding Corp), Sixth Supplemental Indenture (Covanta Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will Parent shall not, and will shall not permit any Restricted Subsidiary to, to 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Parent or any of its Restricted Subsidiary Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits (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);
(2ii) make any loans or advances to the Company Parent or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Company Parent or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1i) or (2ii) aboveof this Section 3.6(a). ).
(b) The preceding provisions will restrictions in Section 3.6(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person or assets pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary in effect on or before the date on which such Person became a Restricted Subsidiary or was acquired (whether by mergerby, consolidation, acquisition of Capital Stock merged into or otherwise) by consolidated with the Company Parent or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company Parent or in contemplation of the transaction) and outstanding on or such dateassets were acquired by the Parent or any Restricted Subsidiary; provided provided, that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Company Parent or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this Section 3.6(b) or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing Refinancing of an agreement referred to in clause (i) or (ii) of this paragraph Section 3.6(b) or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable (as determined in Good Faith by the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableParent) in any material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph Section 3.6(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock merged into or otherwise) by the Company or consolidated with a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.6(a)(iii), encumbrances or restrictions arising in connection with Liens permitted to be Incurred under the provisions of Section 3.5 hereof that apply only to the assets subject to such Liens;
(av) purchase money obligations for property acquired in the ordinary course of business, (b) and Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesObligations, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.6(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Parent pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vivii) restrictions on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
(viii) any customary non-assignment provisions in leases leases, subleases or licenses and other agreements entered into by the Company Parent or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, order, permit or order;
(viii) customary encumbrances grant, including for the avoidance of doubt, any encumbrance or restrictions existing under or restriction on any Insurance Subsidiary by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with any governmental authority having the entering into of power to regulate such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licensesInsurance Subsidiary;
(x) encumbrances or restrictions relating contained in or arising under indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by the Parent or any Restricted Subsidiary subsequent to any Lien permitted under the Issue Date pursuant to Section 3.3 hereof that are not more restrictive, taken as a whole (as determined in Good Faith by the Parent), than those applicable to the Parent in this IndentureIndenture on the Issue Date;
(xi) encumbrances or restrictions contained in or arising under indentures or other debt instruments or other debt arrangements Incurred or Preferred Stock issued by the Parent or any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively Subsidiary subsequent to the Issue Date pursuant to Section 3.3 hereof or contained or arising in connection with any Reinsurance Agreement or Statutory Reserve Financing or agreement entered into by an Insurance Subsidiary or Special Purpose Subsidiary; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially adversely affect the Company’s ability to make anticipated principal or interest payments on the Notes or are otherwise customary for financings or arrangements of that type (in each case, as determined in Good Faith by the Parent);
(xii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase or other agreement to which the Parent or any of its Restricted Subsidiaries is a party and entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Parent or such Restricted Subsidiary that are the subject of such agreement, the Qualified Receivables Transactionpayment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Parent or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary.
(xiii) customary provisions in joint venture agreements and other similar agreements;
(xiixiv) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business; and
(xv) any instrument governing any Indebtedness or Capital Stock of a Person that is an Unrestricted Subsidiary as in effect on the date that such Person becomes a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person who became a Restricted Subsidiary or the property or assets of the Person who became a Restricted Subsidiary, and was not entered into in contemplation of the designation of such Subsidiary as a Restricted Subsidiary; provided that in the case of Restricted Subsidiaries that are not Subsidiary GuarantorsIndebtedness, restrictions imposed under instruments governing the incurrence of such Indebtedness Incurred pursuant to the definition as a result of “Permitted Indebtedness”;
(xiii) in the case of any such Person becoming a Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under was permitted by the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness terms of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingthis Indenture.
Appears in 2 contracts
Samples: Indenture (F&G Annuities & Life, Inc.), Indenture (FGL Holdings)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue DateDate and identified in Schedule 3.4 to this Indenture, including, without limitation, this Indenture, the Notes issued thereunder Collateral Documents, the Securities, the Exchange Securities, the Subsidiary Guarantees and the Guarantees thereof, the Existing Notes Working Capital Facility (and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(3), any encumbrance, lien or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements otherwise permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiix) customary encumbrances or restrictions existing under contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Subsidiary Guarantors in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection accordance with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries Section 3.2 that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect than those applicable to the Company in either this Indenture or the Working Capital Facility on the Issue Date (which result in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xi) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 3.2; provided that such encumbrances and restrictions than those prior contained in any agreement or instrument will not materially affect the Company’s ability to such amendment make anticipated principal or refinancinginterest payments on the Securities (as determined in good faith by the Board of Directors of the Company).
Appears in 2 contracts
Samples: Indenture (Cellu Tissue - CityForest LLC), Indenture (Cellu Tissue Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary that is not a Subsidiary Guarantor to, 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:
(1directly or indirectly) to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the 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 common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
, (2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
) or (3c) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Company, except:
(1) or with respect to clauses (2a), (b) aboveand (c). The preceding provisions will not prohibit:,
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 4.05(1)(A) or (iiB) of this paragraph or this clause (iiiC) or contained in any amendment to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement refinancing agreement or refinancing amendment are not, in no less favorable on the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, whole to the Holders of the Notes Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(vD) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viE) customary nonwith respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred under this Indenture, or any agreement pursuant to which such Indebtedness was issued;
(F) restrictions or conditions, governing any Indebtedness incurred in connection with Permitted Securitizations that were permitted under Section 4.03(b)(13) if such restrictions or conditions apply only to the Receivables and the Related Assets that are the subject of the Permitted Securitization, and restrictions or conditions imposed on any SPE Subsidiary in connection with any Permitted Securitization;
(G) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-assignment provisions in leases leaseback agreements, stock sale agreements, limited liability company organizational documents, 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, which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(H) restrictions on cash, Temporary Cash Investment or other deposits or net worth imposed by the Company customers or any Restricted Subsidiary lessors under contracts or leases entered into in the ordinary course of business;
(viiI) encumbrances or restrictions customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(J) any restriction arising or existing by reason of under applicable law or any applicable rulelaw, regulation or order;; and
(viiiK) customary encumbrances any encumbrance or restrictions restriction existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transactionCredit Facilities;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A2) with respect to Subsidiaries, existing on clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the Issue Date; and extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) with respect to Subsidiaries created any encumbrance or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the Company extent such encumbrance or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account restriction restricts the relative preferences, if any, transfer of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable property subject to such Subsidiary security agreements or mortgages;
(C) non-assignment provisions or subletting restrictions in contracts, leases and no less favorable to such Subsidiary than could have been obtained licenses entered into in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent ordinary course of the holders of the Capital Stock of such Subsidiarybusiness; and
(xivD) encumbrances on property that exist at the time the property was acquired by the Company or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of such acquisition; and
(3) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses paragraphs (i1) through and (xiii2) above; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings (other than with respect to the Credit Facilities) are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, restrictive on the whole with respect to such encumbrances dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Samples: Indenture (Westborn Service Center, Inc.), Indenture (Westborn Service Center, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary of the Company (it being understood provided, however, that (i) the priority that any series of any Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or liquidating distributions prior shall not be deemed to be a restriction on the ability to pay dividends or liquidating make other distributions being paid on Common its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to make distributions on Capital Stockpay Indebtedness);
(2) make any loans or advances to the Company or any a Restricted Subsidiary of the Company (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any a Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)the Company. The However, the preceding provisions restrictions of this Section 3.4 will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an in any agreement in effect at or entered into on the Issue Date, including, without limitation, Date (including the Credit Agreement);
(2) this Indenture, the Notes issued thereunder Securities and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateSubsidiary Guarantees;
(ii3) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or became a Restricted Subsidiary of the Company (other than Capital Stock or Indebtedness that was Incurred incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date;
(4) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4) or contained in any amendment to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Holders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Company;
(a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in connection with a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred in the ordinary course of business;
(15) 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 of the Company; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction shall does not extend to any assets or property of the Company or any other Restricted Subsidiary of the Company other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Unrestricted Subsidiary; and
(xiv16) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings amendments of the contracts, instruments or obligations referred to in clauses (i1) through (xiii15) aboveof this paragraph; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no amendments are not materially more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Company.
Appears in 2 contracts
Samples: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2However, Section 4.10(a) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (4), clause (10) or this clause (5) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (4), clause (i10) or (ii) of this paragraph or this clause (iii5) of this Section 4.10(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(6) in the case of clause (i3) of Section 4.10(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(7) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.10(a) on the property so acquired or leasedacquired;
(v) 8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii10) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.07; provided, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent Holders of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, Notes taken as a whole, as determined by the Board of Directors of the Company in good faith, than the provisions contained in the Credit Agreement and in this Indenture as in effect on the Issue Date;
(11) encumbrances or restrictions contained in agreements entered into in connection with respect the Credit Agreement as amended from time to time, or the Existing Senior Notes as amended from time to time, that apply during the occurrence of a continuing default or event of default under the Credit Agreement or Existing Senior Notes;
(12) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such encumbrances Preferred Stock is permitted pursuant to Section 4.07 and restrictions the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than those requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such amendment other Capital Stock); and
(13) restrictions on cash or refinancingother deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 2 contracts
Samples: Indenture (Ultra Petroleum Corp), Indenture (Ultra Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this IndentureIndenture imposed by the holder of such Lien;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, Subsidiaries existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date Date: (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, ; (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), ; (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, ; and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 2 contracts
Samples: Indenture (Davita Inc), Indenture (Physicians Management, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph or this clause (6) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (i) or (ii12) of this paragraph or this clause (iii6); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of the first paragraph of this Section 1114, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under the Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivc) contained in any agreement creating Hedging Obligations permitted from time to time under the Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 1114 on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely any of its Restricted Subsidiaries permitted to permit pro rata dividends and other distributions be Incurred pursuant to an agreement entered into subsequent to the Issue Date in respect of any Capital Stock of such Subsidiary (taking into account accordance with Section 1111; provided that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partythe Company taken as a whole, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without as determined by the consent Board of Directors of the holders Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in the Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 1111 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, by-laws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Samples: Tenth Supplemental Indenture (Concho Resources Inc), Seventh Supplemental Indenture (Concho Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Issuer or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to restrictions:
(i) any encumbrance or restriction pursuant to an agreement (a) in effect at or entered into on the Issue Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(ii) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionIssuer;
(iii) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph above, in clause (vi), (vii) or (x) below or this clause (iii); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the CompanyIssuer’s Board of Directors or Senior Management, materially less favorableDirectors), taken as a whole, to than the Holders restrictions of the Notes than the encumbrances and restrictions same type contained in such the agreements or instruments referred to in clause clauses (i), (ii), (vi), (vii) or (iix) of or this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired clause (whether by mergeriii), consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (aas determined in good faith by the Issuer’s Board of Directors) purchase money obligations for than the restrictions of the same type contained in this Indenture;
(v) existing by reason of applicable law, rule, regulation or order;
(vi) with respect to clause (c) above only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;
(vii) encumbering Property at the time the Property was acquired by the Issuer or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(viii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property acquired licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(ix) which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, (b) Capitalized Lease Obligations which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesprovided, in each casehowever, that impose encumbrances or the Issuer’s Board of Directors determines in good faith that such restrictions of are not reasonably likely to impair the nature described in clause (3) of the first paragraph of this Section 4.14 Issuer’s ability to make principal and interest payments on the property so acquired or leasedNotes;
(vxi) any restriction existing by reason of this Indenture, the Notes, and the Note Guarantees;
(xii) with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viixiii) encumbrances on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xiixiv) in the case of the provision described in clause (c) of the first paragraph of this covenant: arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant thereof in any manner material to the definition of “Permitted Indebtedness”Issuer or any Restricted Subsidiary thereof;
(xiiixv) contained in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such SubsidiaryHedging Obligations; and
(xivxvi) any encumbrances or constituting customary restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior a Securitization Subsidiary, pursuant to such amendment or refinancingthe terms of a Permitted Receivables Financing.
Appears in 2 contracts
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Issuer or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Issuer or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuer determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph or this clause (iiivi); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes Securities than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (i3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date Issuer or the date such Restricted Subsidiary became a Restricted Subsidiary to the extent such encumbrances or was acquired (whether by mergerrestrictions restrict the transfer of the property subject to such mortgages, consolidation, acquisition of Capital Stock pledges or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableother security agreements;
(ivc) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leasedacquired;
(vix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vix) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(viixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixii) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other governing Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case Issuer or any of its Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness permitted to be Incurred pursuant to an agreement entered into subsequent to the definition Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Issuer taken as a whole, as determined by the Board of “Permitted Indebtedness”Directors of the Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreements and in this Indenture as in effect on the Issue Date;
(xiii) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiv) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the case ordinary course of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiarybusiness; and
(xivxvi) any encumbrances encumbrance or restrictions imposed by restriction contained in either Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to contained in such amendment or refinancingSenior Secured Credit Agreement as in effect on the Issue Date.
Appears in 2 contracts
Samples: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary (other than Excluded Project Subsidiaries) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than Excluded Project Subsidiaries) to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries) (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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries) (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (other than any Excluded Project Subsidiary) (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will .
(b) Section 4.09(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions pursuant to an agreement the Senior Credit Facility and related documentation and other agreements or instruments in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii2) the Indenture and the Notes;
(3) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation of the transaction) and outstanding on such date; provided that any such thereof), which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Company or any other Restricted Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquired and property (including after-acquired by such Restricted Subsidiary after its date of acquisitionproperty);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 4.09(b) or this clause (iii4); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreementamendments, amendmentrestatements, restatementmodifications, modificationrenewals, renewalsupplements, increaserefundings, refunding, replacement replacements or refinancing are notrefinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes no more restrictive than the encumbrances and restrictions contained in such the agreements referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 4.09(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of Section 4.09(a)(3), Liens permitted to be Incurred under Section 4.05 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(a6) purchase money obligations for property acquired in the ordinary course of business, (b) business and Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.09(a)(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v7) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary non-assignment provisions in leases joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(10) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Covanta Holding Corp), Second Supplemental Indenture (Covanta Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
; (2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) The provisions of transfer described in clause Section 3.6
(1a) or (2) above). The preceding provisions will not prohibit:
: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture, the Notes issued thereunder and indenture for the Guarantees thereof, the Existing 8 3/4% Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
Agreement; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
acquired; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 3.6(b)(i) or (iib)(ii) of this paragraph or this clause Section 3.6(b)(iii) or contained in any amendment to an agreement referred to in Section 3.6(b)(i) or (iiib)(ii) or this Section 3.6(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause (iSection 3.6(b)(i) or (iib)(ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary Subsidiary, whichever is applicable; (iv) in the case of Section 3.6(b)(iii), any encumbrance or was acquired restriction (whether by mergera) that restricts in a customary manner the subletting, consolidationassignment or transfer of any property or asset that is subject to a lease, acquisition license or similar contract, or the assignment or transfer of Capital Stock any such lease, license or otherwiseother contract; (b) by contained in mortgages, pledges or other security agreements permitted under the Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or (c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, whichever is applicable;; (v)
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.6
(a) on the property so acquired or leased;
acquired; (vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (vivii) customary non-assignment net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; and (viiviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 2 contracts
Samples: Indenture (Nebraska Book Co), Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary of the Company (it being understood provided, however, that (i) the priority that any series of any Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or liquidating distributions prior shall not be deemed to be a restriction on the ability to pay dividends or liquidating make other distributions being paid on Common its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to make distributions on Capital Stockpay Indebtedness);
(2) make any loans or advances to the Company or any a Restricted Subsidiary of the Company (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any a Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)the Company. The However, the preceding provisions restrictions of this Section 3.4 will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an in any agreement in effect at or entered into on the Issue Date, including, without limitation, Date (including the Credit Agreement);
(2) this Indenture, the Notes issued thereunder Securities and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateSubsidiary Guarantees;
(ii3) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or became a Restricted Subsidiary of the Company (other than Capital Stock or Indebtedness that was Incurred incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date;
(4) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4) or contained in any amendment to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Holders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Company;
(a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in connection with a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred in the ordinary course of business;
(15) 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 of the Company; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction shall does not extend to any assets or property of the Company or any other Restricted Subsidiary of the Company other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Unrestricted Subsidiary; and
(xiv16) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings amendments of the contracts, instruments or obligations referred to in clauses (i1) through (xiii15) aboveof this paragraph; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no amendments are not materially more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Company. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries shall nonetheless retain the ability to incur Liens to the extent provided for under Section 3.6 (including, without limitation, Permitted Liens) and any Permitted Liens which may refer to one or more of the above covenants shall be interpreted as though such covenant(s) continued to be applicable subsequent to the termination thereof pursuant to the terms of this Indenture.
Appears in 2 contracts
Samples: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary (other than the Co-Issuer) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any other 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);
(2) make any 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 Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, including this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures Indenture and the Senior Secured Credit FacilitiesAgreement, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) and (ii) or clause (ix) of this paragraph or this clause (iv) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) or and (ii) or clause (ix) of this paragraph or this clause (iiiiv); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes Securities than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(v) in the case of clause (i3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(vi) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations Obligations, in each case that are permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, Indenture and that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property or assets so acquired or leasedacquired, and any proceeds thereof;
(vvii) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or property or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or other disposition;
(viviii) customary non-assignment provisions in leases and other agreements entered into by the Company any encumbrance or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions restriction arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness encumbrance or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) restriction contained in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments agreements governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely any of its Restricted Subsidiaries permitted to permit pro rata dividends and other distributions be Incurred pursuant to an agreement entered into subsequent to the Issue Date in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions accordance with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) aboveSection 3.2; provided that the provisions relating to such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements encumbrance or refinancings are, restriction contained in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictivesuch Indebtedness, taken as a whole, with respect are not materially less favorable to such encumbrances the Company taken as a whole, as determined by the Board of Directors of the Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and restrictions than those prior to such amendment in this Indenture; and
(x) any encumbrance or refinancingrestriction on cash or other deposits or net worth imposed by customers under contracts or required by insurance, surety or bonding companies, in each case entered into or incurred in the ordinary course of business.
Appears in 2 contracts
Samples: Indenture (Alta Mesa Holdings, LP), Indenture (Alta Mesa Energy LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will may not, and will may not permit any Restricted Subsidiary to, 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:
(1a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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 and any subordination of any such Indebtedness or other obligations being deemed not be deemed a restriction on the ability to make distributions on Capital Stockconstitute such encumbrances or restrictions);
(2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall being deemed not be deemed a restriction on the ability to make loans constitute such an encumbrance or advancesrestriction); or
(3c) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this the Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Agreement in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such the Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transactiontransaction or transactions) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (ac) of the first paragraph of this Section 3.06, any encumbrance or restriction:
(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 assignment or transfer of any such lease, license or other contract;
(2) contained in mortgages, pledges or other security agreements permitted under the Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; 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;
(v) (i) purchase money obligations for property acquired in the ordinary course of business, business and (bii) Capitalized Capital Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3c) of the first paragraph of this Section 4.14 3.06 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) customary non-assignment encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) encumbrances and restrictions contained in contracts entered into the ordinary course of business, not relating to any Lien permitted under this IndentureIndebtedness, and that do not individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realized the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(xi) with respect to any other Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or contractual requirements any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a Qualified Receivables Transaction relating exclusively financial covenant in such Indebtedness or agreement or (2) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive, and
(b) the encumbrance or restriction is not materially more disadvantageous to the assets that are the subject holders of the Qualified Receivables Transaction;Notes than is customary in comparable financing (as determined by the Company):
(xii) restrictions on cash or other deposits imposed by customers under contracts entered into in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;ordinary course or business; or
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) provisions with respect to Subsidiariesthe disposition or distribution of assets or property in operating agreements, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness joint venture agreements, development agreements, area of the Company or another Subsidiary, (2) on dividend payments mutual interest agreements and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms agreements that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, customary in the good faith judgment Oil and Gas Business and entered into in the ordinary course of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingbusiness.
Appears in 2 contracts
Samples: First Supplemental Indenture (Unit Corp), First Supplemental Indenture (Unit Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary (other than Excluded Project Subsidiaries) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than Excluded Project Subsidiaries) to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries), 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries), it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (other than any Excluded Project Subsidiary) (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will .
(b) Section 4.09(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions pursuant to an agreement the Senior Credit Facility and related documentation and other agreements or instruments in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii2) the Indenture and the Notes;
(3) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was Person acquired by the Company or any of its Restricted Subsidiaries in contemplation existence at the time of the transaction) and outstanding on such date; provided that any such acquisition, which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Company or any other Restricted Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquired and property (including after-acquired by such Restricted Subsidiary after its date of acquisitionproperty);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 4.09(b) or this clause (iii4); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreementamendments, amendmentrestatements, restatementmodifications, modificationrenewals, renewalsupplements, increaserefundings, refunding, replacement replacements or refinancing are notrefinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes no more restrictive than the encumbrances and restrictions contained in such the agreements referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 4.09(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of Section 4.09(a)(3), Liens permitted to be Incurred under Section 4.05 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(a6) purchase money obligations for property acquired in the ordinary course of business, (b) business and Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.09(a)(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v7) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary non-assignment provisions in leases joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(10) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Covanta Holding Corp), Fourth Supplemental Indenture (Covanta Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture and the 20[ ] Indenture, the Notes notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this IndentureIndenture imposed by the holder of such Lien;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, Subsidiaries existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date Date: (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, ; (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), ; (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, ; and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 2 contracts
Samples: Indenture (Physicians Management, LLC), Indenture (Physicians Management, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any 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 Restricted Subsidiary to other Indebtedness Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to restrictions:
(i) any encumbrance or restriction pursuant to an agreement (a) in effect at or entered into on the Issue Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder and the Guarantees thereofExisting Credit Agreement, the Existing Notes Indenture and the Guarantees thereof USD Indenture, and (b) under the related indentures and the Senior New Credit Facilities, in each case, as in effect on such dateAgreement;
(ii) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionCompany;
(iii) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in clause (ii)or (ii) above, in clause (vi), (vii) or (iix) of this paragraph below or this clause (iii); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are notRefinancing is not materially more restrictive (as determined in good faith by the Company’s Board of Directors), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith judgment by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture;
(v) existing by reason of applicable law, rule, regulation or order;
(vi) with respect to clause (c) above only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;
(vii) encumbering Property at the time the Property was acquired by the Company or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(viii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(ix) which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors or Senior Managementdetermines in good faith that such restrictions are not reasonably likely to impair the Company’s ability to make principal and interest payments on the Notes; or
(xi) existing by reason of this Indenture, materially less favorable, taken as a whole, to the Holders of the Notes than and the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableNote Guarantees;
(ivxii) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viixiii) encumbrances on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xiixiv) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant the provision described in clause (c) of the first paragraph of this covenant; arising or agreed to the definition of “Permitted Indebtedness”;
(xiii) in the case ordinary course of business, not relating to any Restricted Subsidiary Debt, and that is not a Subsidiary Guarantordo not, restrictions under individually or in the constitutive documents governing such Subsidiary: (A) with respect to Subsidiariesaggregate, existing on detract from the Issue Date; and (B) with respect to Subsidiaries created value of property or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness assets of the Company or another Subsidiary, (2) on dividend payments and other distributions solely any Restricted Subsidiary thereof in any manner material to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another any Restricted Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained thereof;
(xv) contained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such SubsidiaryHedging Obligations; and
(xivxvi) any encumbrances or constituting customary restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior a Securitization Subsidiary, pursuant to such amendment or refinancingthe terms of a Permitted Receivables Financing.
Appears in 1 contract
Samples: Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1Section 3.4(a)(i) or (2and Section 3.4(a)(ii) above). The preceding provisions .
(b) Section 3.4(a) will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, Date including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Securities, the Guarantees thereof and Subsidiary Guarantees, the related indentures 2007 Indenture and the Senior Credit Facilities, in each case, as Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 3.4(b)(i) or Section 3.4(b)(ii) or this Section 3.4(b)(iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph or this clause (iiiSection 3.4(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableno more restrictive, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors of the Company, are necessary to effect such Qualified Receivables Transaction;
(vii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viviii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(ix) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixi) customary encumbrances or restrictions existing under contained in indentures or debt instruments, Hedging Obligations or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Subsidiary Guarantors in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection accordance with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries Section 3.2 that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect than those applicable to the Company in either this Indenture or the Senior Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xii) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to Section 3.2(b)(v) and Section 3.2(b)(xiii) by Restricted Subsidiaries, provided that after giving effect to such encumbrances and restrictions than those prior Incurrence of Indebtedness, the Company would be permitted to such amendment or refinancingincur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a).
Appears in 1 contract
Samples: Indenture (Deluxe Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiary to, Subsidiaries to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries on its Capital Stock Stock, or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiary (it being understood Subsidiaries; provided that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the payment of dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed to be a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Company or any of its Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) transfer any of its property properties or assets to the Company or any of its Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:Subsidiaries.
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this IndentureHowever, (cthe restrictions in Section 3.4(a) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect will not apply to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;of:
(ix1) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other agreements governing Existing Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) as in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing effect on the Issue Date; Date and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethose agreements; provided that the encumbrances or restrictions contained in 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;
(2) this Indenture, the Notes (and any additional Notes), the Subsidiary Guarantees, the Collateral Agency Agreement and the Security Documents;
(3) any future Liens that may be permitted to be granted under, or incurred not in violation of, any other provisions of this Indenture;
(4) agreements governing other Indebtedness or Preferred Stock permitted to be incurred or issued under the provisions of Section 3.2 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are, in the good faith judgment of an officer of the Company not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(5) applicable law or any applicable rule, regulation, order, approval, license, permit or similar restriction;
(a) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisition, and (b) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of an officer of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(7) customary non-assignment provisions in contracts, agreements, licenses and leases entered into in the ordinary course of business;
(8) purchase money obligations, security agreements or mortgage financings for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 3.4(a);
(9) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such encumbrances Restricted Subsidiary pending the closing of such sale or disposition;
(10) agreements relating to secured Indebtedness otherwise permitted to be incurred pursuant to Section 3.2 and not in violation of Section 3.6, that limit the right of the debtor to dispose of assets securing such Indebtedness;
(11) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those prior contained in the agreements governing the Indebtedness being refinanced;
(12) provisions with respect to the disposition or distribution of assets 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 or with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such amendment agreements;
(13) encumbrances or refinancingrestrictions contained in, or in respect of, Hedging Obligations incurred in the ordinary course of business and permitted under this Indenture;
(14) encumbrances or restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(15) any instrument governing Indebtedness or Capital Stock of a Foreign Subsidiary; provided that such Indebtedness or Capital was otherwise permitted by the terms of this Indenture to be incurred or issued; and
(16) restrictions on property received in connection with a sale or issuance of Equity Interests in a Permitted Water Subsidiary that limit the use of such property in accordance with clause (12) of the definition of Asset Sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture and identified in Schedule 3.4 to this Indenture, including, without limitation, this Indenture, the Notes issued thereunder Collateral Documents and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Working Capital Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(3), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Coastal Paper CO)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph or this clause (6) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (i) or (ii12) of this paragraph or this clause (iii6); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of the first paragraph of this Section 1114, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under the Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivc) contained in any agreement creating Hedging Obligations permitted from time to time under the Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business.
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 1114 on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely any of its Restricted Subsidiaries permitted to permit pro rata dividends and other distributions be Incurred pursuant to an agreement entered into subsequent to the Issue Date in respect of any Capital Stock of such Subsidiary (taking into account accordance with Section 1111; provided that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partythe Company taken as a whole, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without as determined by the consent Board of Directors of the holders Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in the Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 1111 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, by-laws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Samples: Sixth Supplemental Indenture (Concho Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, including this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Securities, the Subsidiary Guarantees thereof and the related indentures and the Senior Secured Credit Facilities, in each case, as Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations and Synthetic Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionacquired;
(vi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction;
(vii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiix) customary encumbrances or restrictions existing under contained in indentures or other debt agreements Incurred or Preferred Stock issued by reason of provisions Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 3.2; provided that such encumbrances and restrictions contained in joint venture, partnership (limited any agreement or general), limited liability company instrument will not materially affect the Company’s ability to make anticipated principal or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed interest payments on the transfer, licensing, sub-licensing and assignment Securities (as determined by the Board of intellectual property and Directors of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenturethe Company);
(xi) any customary non-assignment provisions in contracts, leases and licenses entered into in the ordinary course of business; and
(xii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, sale-leaseback agreements, stock sale agreements and other Indebtedness or contractual requirements Incurred similar agreements entered into with respect to a Qualified Receivables Transaction relating exclusively the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingagreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1Section 3.4(a)(i) or (2and Section 3.4(a)(ii) above). The preceding provisions .
(b) Section 3.4(a) will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, Date including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Notes, the Guarantees thereof and the related indentures Subsidiary Guarantees, and the Senior Credit Facilities, in each case, as Agreements (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 3.4(b)(i) or Section 3.4(b)(ii) or this Section 3.4(b)(iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph or this clause (iiiSection 3.4(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableno more restrictive, taken as a whole, to the Holders of the Notes Company than the encumbrances and restrictions contained in such agreements referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction;
(vii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viviii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(ix) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixi) customary encumbrances or restrictions existing under contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Subsidiary Guarantors in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection accordance with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries Section 3.2 that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect than those applicable to the Company in either this Indenture or the Senior Credit Agreements on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xii) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to Section 3.2(b)(v) and Section 3.2(b)(xiii) by Restricted Subsidiaries, provided that after giving effect to such encumbrances and restrictions than those prior Incurrence of Indebtedness, the Company would be permitted to such amendment or refinancingincur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a).
Appears in 1 contract
Samples: Indenture (Deluxe Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture and the 2018 Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this IndentureIndenture imposed by the holder of such Lien;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, Subsidiaries existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date Date: (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, ; (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), ; (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, ; and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Davita Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company (a) Each of Superior Energy and Issuer will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock to Superior Energy, Issuer or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries (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);
(2) make any loans or advances to the Company Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries (it being understood that the subordination of loans or advances made to the Company Superior Energy, Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). .
(b) The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, includingincluding any such Debt Facility and the Notes, without limitation, the Exchange Notes and this Indenture, as well as the Notes issued thereunder Third Amended and Restated Credit Agreement referenced in clause (ii) of the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior definition of “Credit Facilities, in each case, as in effect on such dateAgreement”;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by mergerSuperior Energy or Issuer, consolidation, acquisition of Capital Stock or otherwise) by as the Company or a Restricted Subsidiary case may be (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) Issuer), and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.08(b) or this clause (iii3) or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement refinancing agreement or refinancing amendment are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes no more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred predecessor agreements;
(4) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (i) or (ii3) of this paragraph on the Issue Date Section 4.08(a) hereof, restrictions contained in security agreements or the date such Restricted Subsidiary became mortgages securing Indebtedness of Superior Energy, Issuer or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablemortgages;
(iv6) provisions limiting the disposition or distribution of assets or property in joint venture agreements, limited liability agreements, joint operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business, which limitation is applicable only to the assets that are the subject of such agreements;
(a7) restrictions imposed by customers on cash or other amounts deposited by them pursuant to contracts entered into in the ordinary course of business;
(8) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized business and Capital Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances restrictions on the property purchased or restrictions leased of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased4.08(a) hereof;
(v9) any restriction with respect to a Restricted Subsidiary (or any restrictions on the transfer of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to required by any regulatory authority having jurisdiction over Superior Energy, Issuer or such restriction) pending the closing of such sale or dispositionRestricted Subsidiary;
(vi10) customary non-assignment provisions encumbrances and restrictions contained in leases and other agreements contracts entered into by the Company or any Restricted Subsidiary in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of Superior Energy, Issuer and their Restricted Subsidiaries to realize the value of, property or assets of Issuer or any Restricted Subsidiary in any manner material to Superior Energy, Issuer or any Restricted Subsidiary;
(vii11) encumbrances or restrictions arising contained in, or existing by reason of applicable law or any applicable rulein respect of, regulation or orderHedging Obligations permitted under this Indenture from time to time;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating related to any Lien Secured Indebtedness otherwise permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness be Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of Section 4.09 and any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions corresponding Liens permitted to be Incurred under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on provisions of Section 4.12 that limit the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness right of the Company or another Subsidiary, (2) on dividend payments and other distributions solely debtor to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, dispose of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable assets subject to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such SubsidiaryLiens; and
(xiv13) any encumbrances other Indebtedness Incurred or restrictions imposed Preferred Stock issued by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to a Guarantor in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings areaccordance with Section 4.09 that, in the good faith judgment of the Company’s Board of Directors or Senior Management, no are not more materially restrictive, taken as a whole, than those applicable to Issuer or Superior Energy in this Indenture or the Credit Agreement on the Issue Date (which results in encumbrances or restrictions at a Restricted Subsidiary level comparable to those applicable to Issuer) or (y) other Indebtedness Incurred or Preferred Stock issued by a Non-Guarantor Subsidiary, in each case permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09; provided that with respect to clause (y), such encumbrances or restrictions will not materially affect Issuer’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of Senior Management).
(c) Superior Energy will not create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on its ability to (i) make capital contributions or other Investments in Issuer or any Restricted Subsidiary or pay any Indebtedness owed to Issuer or any Restricted Subsidiary, (ii) make any loans or advances to Issuer or any Restricted Subsidiary or (iii) transfer any of its property or assets to Issuer or any Restricted Subsidiary, except:
(1) any encumbrance or restriction pursuant to any Debt Facilities and any other agreement in effect at or entered into on the Issue Date, as well as the Third Amended and Restated Credit Agreement referenced in clause (ii) of the definition of “Credit Agreement”; and
(2) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(c) or this clause (2) or contained in any amendment to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(c) of this clause (2); provided, however, that the encumbrances and restrictions with respect to Superior Energy contained in any such refinancing agreement or amendment are no more restrictive in any material respect than those prior the encumbrances and restrictions with respect to Superior Energy contained in such amendment or refinancingpredecessor agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any 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 Restricted Subsidiary to other Indebtedness Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to:
(i1) any encumbrance or restriction pursuant to an agreement restrictions in effect at or entered into on the Issue Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(ii2) restrictions relating to any encumbrance agreements or restriction with respect to instruments of a Person existing at the time it became a Restricted Subsidiary pursuant or to an agreement any agreements or instruments relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before Property at the date on which such Restricted Subsidiary was time acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a any Restricted Subsidiary (other than Capital Stock Subsidiary, in each case if such restriction was not created in connection with or Indebtedness that was Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other a Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionSubsidiary;
(iii3) restrictions that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of an Debt or other agreement or instrument referred to in clause (i) or (ii) of this paragraph or this clause (iii); providedSection 4.08, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the Company’s Board of Directors or Senior Management, materially less favorable), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in this Section 4.08, as applicable;
(4) restrictions resulting from the Incurrence of any Debt in accordance with Section 4.04, provided that either (1) the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Company) than the restrictions of the same type contained in this Indenture or the Credit Agreement, or (2) the Company reasonably determines in good faith that such restrictions are not reasonably likely to impair the Issuers’ ability to make principal and interest payments on the Notes;
(5) restrictions existing by reason of Applicable Law;
(6) with respect to clause (c) above only, restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes than pursuant to Section 4.04 and Section 4.06 that limit the encumbrances and right of the debtor to dispose of the Property securing that Debt;
(7) restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on encumbering Property at the Issue Date or time the date such Restricted Subsidiary became a Restricted Subsidiary or Property was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a any Restricted Subsidiary, whichever is applicableso long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(iv) 8) restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (a) purchase money obligations for including, without limitation, intellectual property acquired licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(9) restrictions which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(10) restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, (b) Capitalized Lease Obligations which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesprovided, in each casehowever, that impose encumbrances or the Company reasonably determines in good faith that such restrictions of are not reasonably likely to impair the nature described in clause (3) of the first paragraph of this Section 4.14 Issuers’ ability to make principal and interest payments on the property so acquired or leasedNotes;
(v11) any restriction restrictions existing by reason of the Note Documents;
(12) restrictions with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii13) encumbrances restrictions on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii14) in the case of Restricted Subsidiaries that are not Subsidiary Guarantorsthe provision described in clause (c) of this Section 4.08, restrictions imposed under instruments governing Indebtedness Incurred pursuant arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the definition of “Permitted Indebtedness”Company or any Restricted Subsidiary thereof;
(xiii15) restrictions contained in Hedging Obligations;
(16) with respect to clause (c) above only, restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the case ordinary course for the employment, charter or other hire of such property;
(17) with respect to clause (c) above only, restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
(18) restrictions on cash or other deposits or net worth imposed by customers, suppliers or vendors pursuant to contracts entered into in the ordinary course of business;
(19) encumbrances or restrictions applicable only to a Restricted Subsidiary that is a Foreign Subsidiary or to any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv20) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such customary encumbrances and restrictions than those prior to such amendment or refinancingcontained in agreements of the types described in the definition of “Permitted Business Investments.”
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any 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 Restricted Subsidiary to other Indebtedness Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to restrictions:
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Effective Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;Agreements,
(iiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;Company,
(iiiC) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in clause (iA) or (iiB) of this paragraph above, in clause (F), (G) or (J) below or this clause (iiiC); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the Company’s Board of Directors or Senior Management, materially less favorablein a resolution of the Board of Directors delivered to the Trustee), taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary same type contained in the ordinary course of business;
(vii) encumbrances agreements or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (iA), (B), (F), (G) through or (xiiiJ) above; or this clause (C), as applicable,
(D) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, the restriction is no less favorable to the Holders of Notes in the any material respect (as determined in good faith judgment of by the Company’s Board of Directors in a resolution of the Board of Directors delivered to the Trustee) than the restrictions of the same type contained in this Indenture, or
(E) existing by reason of applicable law, rule, regulation or Senior Management, no more materially restrictive, taken as a whole, order; and
(F) with respect to such encumbrances clause (c) above only, relating to Debt that is permitted to be Incurred and restrictions than those prior secured without also securing the Notes pursuant to such amendment or refinancing.Section 4.04 and
Appears in 1 contract
Samples: Indenture (Mens Wearhouse Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
; (2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) aboveof this Section 3.7(a). .
(b) The preceding provisions will of paragraph (a) of this Section 3.7 shall not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofNotes, the Existing Notes and Exchange Notes, the Guarantees thereof and the related indentures Note Guarantees, and the Senior Secured Credit Facilities, in each case, as Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock Equity Interests or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock Equity Interests or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; , provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired acquired, and, that in the case of Indebtedness, such Indebtedness was permitted by such Restricted Subsidiary after its date the terms of acquisitionthis Indenture to be Incurred;
(iii) any encumbrance or restriction (A) with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or (B) contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, agreement or amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, in the good faith determination of the Company, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of paragraph (a) of this Section 3.7, any encumbrance or restriction: (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other similar contract; (B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or (C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph (a) of this Section 4.14 3.7 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock Equity Interests or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) restrictions on cash and other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiix) customary encumbrances or restrictions existing under contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Guarantors in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection accordance with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries Section 3.3 that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior applicable to such amendment the Company in either this Indenture or refinancingthe Senior Secured Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xi) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued subsequent to the Issue Date by Restricted Subsidiaries that are not Guarantors pursuant to clause (5) of paragraph (b) of Section 3.3 by Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Tango of Arundel, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary of the Company (it being understood provided, however, that (i) the priority that any series of any Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or liquidating distributions prior shall not be deemed to be a restriction on the ability to pay dividends or liquidating make other distributions being paid on Common its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to make distributions on Capital Stockpay Indebtedness);
(2) make any loans or advances to the Company or any a Restricted Subsidiary of the Company (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any a Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)the Company. The However, the preceding provisions restrictions of this Section 3.4 will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an in any agreement in effect at or entered into on the Issue Date, including, without limitation, Date (including the Credit Agreement);
(2) this Indenture, the Notes issued thereunder Securities and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateSubsidiary Guarantees;
(ii3) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or became a Restricted Subsidiary of the Company (other than Capital Stock or Indebtedness that was Incurred incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date;
(4) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4) or contained in any amendment to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Company;
(a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in any agreement or instrument in the Existing Receivables Financing and in connection with a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred in the ordinary course of business;
(15) 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 of the Company; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction shall does not extend to any assets or property of the Company or any other Restricted Subsidiary of the Company other than the assets and property so acquired and property acquired by of such Restricted Subsidiary after its date of acquisitionUnrestricted Subsidiary;
(iii16) any encumbrance provisions limiting the distribution or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing dividend of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (assets or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series portion of Capital Stock of such Subsidiary), (3) limiting transactions SpinCo in connection with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiarya Qualified Spin Transaction; and
(xiv17) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings amendments of the contracts, instruments or obligations referred to in clauses (i1) through (xiii16) aboveof this paragraph; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no amendments are not materially more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Company.
Appears in 1 contract
Samples: Indenture (CONSOL Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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 (1a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiary Subsidiaries (it being understood that the priority of any Preferred Stock preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
, (2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
) or (3c) transfer any of its property or assets to the Company or any of its Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibitSubsidiaries, except:
(i) any encumbrance or restriction pursuant to applicable law or any applicable rule, regulation or order, or an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, 2000 Notes Closing Date (including the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of such Restricted Subsidiary, in each case Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ic)(i) or (iic)(ii) of this paragraph Section 4.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (c)(i) or (c)(ii) of this Section 4.05 or this clause (c)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement Refinancing agreement or refinancing amendment are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableno more restrictive, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) in the case of clause (ac), any encumbrance or restriction (1) purchase money obligations that restricts in a customary manner the assignment of any lease, license or similar contract or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (2) that is or was created by virtue of any transfer of, agreement to transfer or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (3) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements, or (4) encumbrances or restrictions relating to Indebtedness permitted to be Incurred pursuant to Section 4.03(b)(vi) for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, business that impose only imposes encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired (it being agreed that any such encumbrance or leasedrestriction may also secure other Indebtedness permitted to be Incurred by the Company and provided by the same financing source providing the Indebtedness Incurred pursuant to Section 4.03(b)(vi));
(v) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(vii) Indebtedness or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided, that such restrictions apply only to such Securitization Entity;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;; and
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment any agreement or instrument governing Indebtedness (whether or not outstanding) of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject Foreign Subsidiaries of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Company permitted to be Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiiiSection 4.03(a) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such SubsidiarySection 4.03(b)(x), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1Section 3.4(a)(i) or (2and Section 3.4(a)(ii) above). The preceding provisions .
(b) Section 3.4(a) will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, Date including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Securities, the Guarantees thereof and Subsidiary Guarantees, the related indentures 2011 Indenture, the 2007 Indenture and the Senior Credit Facilities, in each case, as in effect on such dateAgreement (and related documentation);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 3.4(b)(i) or Section 3.4(b)(ii) or this Section 3.4(b)(iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph or this clause (iiiSection 3.4(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableno more restrictive, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors of the Company, are necessary to effect such Qualified Receivables Transaction;
(vii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viviii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(ix) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixi) customary encumbrances or restrictions existing under contained in indentures or debt instruments, Hedging Obligations or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Subsidiary Guarantors in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection accordance with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries Section 3.2 that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect than those applicable to the Company in either this Indenture or the Senior Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xii) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to Section 3.2(b)(v) and Section 3.2(b)(xiii) by Restricted Subsidiaries, provided that after giving effect to such encumbrances and restrictions than those prior Incurrence of Indebtedness, the Company would be permitted to such amendment or refinancingincur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a).
Appears in 1 contract
Samples: Indenture (Deluxe Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Equity Interests, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other 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 any other Equity Interests shall not be deemed a restriction on the ability to pay dividends or make distributions on Capital StockEquity Interests);,
(2b) make any 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 Restricted Subsidiary to other Indebtedness Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) transfer any of its property or assets Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply:
(i1) any encumbrance or restriction pursuant with respect to an agreement clauses (a), (b) and (c), to restrictions:
(A) in effect at or entered into on the Issue Date, including, without limitation, including pursuant to (x) this Indenture, the Notes issued thereunder and the Guarantees thereofrelated Guarantees, (y) the 2024 Notes Indenture, the Existing 2024 Notes and the Guarantees thereof related guarantees and (z) the 2026 Notes Indenture, the 2026 Notes and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;guarantees,
(iiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by and existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;Company,
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary resulting from the Refinancing of Debt Incurred pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i1)(A) or (iiB) of this paragraph above or this in clause (iii); provided2)(A) or (B) below, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, restriction is not materially less favorable, taken as a whole, to the Holders of the Notes than those under the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on agreement evidencing the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;Debt so Refinanced,
(ivD) (a) purchase money obligations for property acquired in resulting from the ordinary course Incurrence of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature any Permitted Debt described in clause (3b) or (c) of the first second paragraph of this Section 4.14 on the property so acquired or leased;4.04,
(vE) any restriction with respect relating to Debt of a Foreign Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;Subsidiary,
(viF) customary non-assignment provisions constituting restrictions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;connection with a Permitted Receivables Financing,
(viiG) encumbrances constituting customary restrictions in joint venture or restrictions shareholder agreements relating to any Person that is not a Wholly Owned Restricted Subsidiary,
(H) arising or existing by reason of applicable law or any applicable law, rule, regulation or order;, or
(viiiI) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings arewill not, in the good faith judgment of the Company’s Board , materially impair the ability of Directors or Senior Management, no more materially restrictive, taken the Company to make all scheduled payments of principal and interest on the Notes as a whole, they come due,
(2) with respect to such encumbrances clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes and the related Guarantees pursuant to Section 4.04 and Section 4.06 and that limit the right of the debtor to dispose of the Property securing that Debt,
(B) encumbering Property at the time the Property was acquired by the Company or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder, or
(D) which are customary restrictions than those prior to such amendment or refinancingcontained in asset sale agreements limiting the transfer of Property pending the closing of the sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, including this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Securities, the Subsidiary Guarantees thereof and the related indentures and the Senior Secured Credit Facilities, in each case, as Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations and Synthetic Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionacquired;
(vi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction;
(vii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiix) customary encumbrances or restrictions existing under contained in indentures or other debt agreements Incurred or Preferred Stock issued by reason of provisions Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 3.2; provided that such encumbrances and restrictions contained in joint venture, partnership (limited any agreement or general), limited liability company instrument will not materially affect the Company’s ability to make anticipated principal or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed interest payments on the transfer, licensing, sub-licensing and assignment Securities (as determined by the Board of intellectual property and Directors of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenturethe Company);
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) customary non-assignment provisions in contracts, leases and licenses entered into in the case ordinary course of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiarybusiness; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, 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:
(1a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Borrower or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends 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);,
(2b) make any loans or advances to the Company Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Company Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); ) or
(3c) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions will not prohibit; except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Issue Effective Date, including, without limitation, including pursuant to this IndentureAgreement, the Notes issued thereunder and the Guarantees thereofPublic Bond Documents, the Existing Notes and Subsidiary Guarantees, the Guarantees thereof and ABL Credit Facility or (B) of the related indentures and type imposed by the Senior Credit Facilities, in each case, as in effect on such datePrior European Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transactionBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refundingrewriting, replacement or refinancing of an agreement referred to in clause the preceding clauses (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, in no less favorable to the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableLenders, taken as a whole, to the Holders of the Notes than the original encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableagreements;
(iv) (a) purchase money obligations for property acquired in the ordinary course case of business, (b) Capitalized Lease Obligations permitted under this Indenture, clause (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property so acquired subject to such security agreements or leasedthe Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary non-assignment provisions in leases leases, subleases or licenses and other agreements entered into by the Company Borrower or any Restricted Subsidiary in the ordinary course of business;
(viiviii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Non-Guarantor Restricted Subsidiary; provided that such encumbrances or restrictions arising will not materially affect the Borrower’s ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or existing by reason (y) other Indebtedness or Preferred Stock of applicable law or any applicable rulea Subsidiary Guarantor, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of in each case permitted to be Incurred pursuant to the provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;Section 6.13; and
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment any restriction created by operation of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingapplicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as First Supplemental Indenture in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Issuer or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Issuer or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company Issuer or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary;
(iv) 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 entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuer determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (v) or clause (iixii) of this paragraph or this clause (iiivi); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(vii) in the case of clause (i3) of the first paragraph of this Section 4.13, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under this First Supplemental Indenture securing Indebtedness of this paragraph on the Issue Date Issuer or the date such Restricted Subsidiary became a Restricted Subsidiary to the extent such encumbrances or was acquired (whether by mergerrestrictions restrict the transfer of the property subject to such mortgages, consolidation, acquisition of Capital Stock pledges or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableother security agreements;
(ivc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(d) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(e) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this First Supplemental Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.13 on the property so acquired or leasedacquired;
(vix) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vix) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(viixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixii) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other governing Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case Issuer or any of its Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness permitted to be Incurred pursuant to an agreement entered into subsequent to the definition Issue Date in accordance with Section 4.12; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Issuer and its Restricted Subsidiaries, taken as a whole, as determined by the Board of “Permitted Indebtedness”Directors of the Issuer in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this First Supplemental Indenture as in effect on the Issue Date;
(xiii) in the case issuance of any Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.12 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created pay dividends or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and make any other distributions solely on its Capital Stock (other than requirements to permit pro rata pay dividends and or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions in respect of any on such other Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such SubsidiaryStock), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and;
(xiv) any encumbrances supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(xv) restrictions on cash or restrictions other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xvi) any encumbrance or restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior contained in the Senior Secured Credit Agreement as in effect on the Issue Date; and
(xvii) any encumbrance or restriction that is no more restrictive than any encumbrance or restriction in the Senior Secured Credit Agreement and that is contained in any agreement creating Hedging Obligations permitted from time to such amendment or refinancingtime hereunder.
Appears in 1 contract
Samples: First Supplemental Indenture (Rosetta Resources Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions will paragraph shall not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Securities, the Subsidiary Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided , provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities (as determined by the Company in its good faith judgment) than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this covenant, any Permitted Lien and encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract; or
(b) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction relating to a Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are customary to effect such Qualified Receivables Transaction;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 covenant on the property so acquired or leasedacquired;
(vvii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viviii) customary non-assignment net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(x) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred by Subsidiary Guarantors in accordance with Section 3.3, that are not more restrictive, taken as a whole, than those applicable to the Company in the Indenture (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level);
(xi) encumbrances or restrictions with respect to Restricted Subsidiaries that are not Subsidiary Guarantors, that are Incurred subsequent to the Issue Date pursuant to clause (12) of the second paragraph of Section 3.3, by Restricted Subsidiaries, provided that after giving effect to such Incurrence of Indebtedness, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first paragraph of Section 3.3; and
(xii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Ryerson Tull Inc /De/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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 (1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary Company, (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);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) transfer any of its property or assets to the Company or any Restricted Subsidiary Company, except (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, date of this Indenture (including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
Facility); (iiB) any encumbrance or restriction with respect to a Restricted Subsidiary (1) pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by mergerthe Company, consolidation, acquisition or of Capital Stock or otherwise) another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company Company, or in contemplation such acquisition of the transactionassets, merger or consolidation) and outstanding on the date of such date; provided that any such encumbrance acquisition, merger or restriction shall not extend consolidation or (2) pursuant to any assets or property agreement (not relating to any Indebtedness) in existence when a Person becomes a Subsidiary of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property when such agreement is acquired by the Company or any Subsidiary thereof, that is not created in contemplation of such Restricted Person becoming such a Subsidiary after its date or such acquisition (for purposes of acquisition;
this clause (iiiB), if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed, as the case may be, by the Company when such Person becomes the Successor Company); (C) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement (a "Refinancing Agreement") effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refinances or replaces, an agreement referred to in clause (iA) or (iiB) of this paragraph covenant or this clause (iii)C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this covenant or this clause (C) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement Refinancing Agreement or refinancing amendment are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially no less favorable, taken as a whole, favorable to the Holders of the Notes taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Agreements to which such agreements referred Refinancing Agreement or amendment relates; (D) any encumbrance or restriction (1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to in clause (i) a lease, license or (ii) of this paragraph on the Issue Date similar contract, or the date such Restricted Subsidiary became a Restricted Subsidiary assignment or was acquired transfer of any lease, license or other contract, (whether by merger, consolidation, acquisition of Capital Stock or otherwise2) 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 a any Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under Subsidiary not otherwise prohibited by this Indenture, (c3) industrial revenue bonds contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or (d4) operating leases, pursuant to customary provisions restricting dispositions of real property interests set forth in each case, that impose encumbrances or restrictions any reciprocal easement agreements of the nature described in clause Company or any Restricted Subsidiary; (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(vE) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; and (viF) customary non-assignment provisions in leases and other agreements entered into any encumbrance or restriction on the transfer of property or assets required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingtheir businesses.
Appears in 1 contract
Samples: Indenture (Colortyme Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The (a) Except for the restrictions set forth herein or imposed by law, the Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other 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);Subsidiary,
(2ii) make any 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 Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); Subsidiary, or
(3iii) transfer any of its property or assets Property to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;Subsidiary.
(iiib) any encumbrance or restriction The foregoing limitations shall not apply:
(i) with respect to a Restricted Subsidiary clauses (a)(i), (ii) and (iii), to restrictions:
(A) in effect on the Issue Date (including, without limitation, restrictions pursuant to an agreement effecting an amendmentthe Notes, restatementthis Third Supplemental Indenture, modificationa Receivables Program and the Credit Agreement),
(B) relating to Acquired Indebtedness, renewal, increase, refunding, replacement or refinancing or
(C) that result from the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (ii)(A) or (iiB) of this paragraph above or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (iii)(A) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiarybelow, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no restrictions are not more materially restrictive, taken as a whole, with respect to such encumbrances dividend and other payment restrictions than those prior contained in the agreement evidencing the Debt so refinanced (as determined by the Board of Directors in its good faith judgment), and
(ii) with respect to clause (a)(iii) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to the covenants described under Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such amendment Debt,
(B) encumbering Property at the time such Property was acquired by the Company or refinancingany Restricted Subsidiary, so long as such restrictions relate solely to the Property so acquired and were not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting the subletting or assignment of leases or customary provisions in other agreements that restrict the assignment of such agreements or rights or other non-cash assets thereunder, including, without limitation, customary restrictions imposed on the transfer of copyrighted or patented materials,
(D) customary restrictions contained in asset sale agreements limiting the transfer of such Property pending the closing of such sale,
(E) contained in Purchase Money Debt for Property acquired in the ordinary course of business,
(F) included in customary provisions and agreements with respect to Permitted Joint Ventures,
(G) contained in any Debt or any agreement pursuant to which such Debt was issued if (i) the encumbrance or restriction applies only upon a payment default or financial covenant default or event of default contained in such Debt or agreement and (ii) the encumbrance or restriction is not materially more disadvantageous to Holders than is customary in comparable financings (as determined by the Board of Directors in its good faith judgment), or
(H) resulting from the application of reasonable and customary borrowing base, net worth and similar covenants set forth in agreements entered into by the Company or a Restricted Subsidiary in respect of Permitted Debt.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an or by reason of the Senior Secured Credit Agreement and related documentation and any other agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction pursuant to this Indenture, the Securities, the Exchange Securities and the Subsidiary Guarantees;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iiiiv) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction with respect to a Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(vi) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive and which encumbrances and restrictions do not extend to any Subsidiary that is not a Foreign Subsidiary;
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement, refinancing, amendment, modification, restatement, renewal, increase or supplement of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) through (iii), (v), (vi) or clause (xiii) of this paragraph or this clause (vii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause clauses (i) through (iii), (v), (vi) or clause (iixiii) of this paragraph or this clause (iiivii); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes holders than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced as determined in good faith by the Senior Management of the Company;
(viii) in the case of clause (i3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iib) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivc) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(f) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(ix) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leasedacquired;
(vx) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vixi) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(viixii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiixiii) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely any of its Restricted Subsidiaries permitted to permit pro rata dividends and other distributions be Incurred pursuant to an agreement entered into subsequent to the Issue Date in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions accordance with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) aboveSection 3.2; provided that the provisions relating to such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements encumbrance or refinancings are, restriction contained in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictivesuch Indebtedness, taken as a whole, with are no less favorable in any material respect to the holders, as determined by the Board of Directors of the Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(xiv) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such encumbrances Preferred Stock is permitted pursuant to Section 3.2 and restrictions the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than those requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such amendment other Capital Stock); and
(xv) restrictions on cash or refinancingother deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Samples: Indenture (Warren Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement (a) in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures Indenture and the Senior Secured Credit Facilities, in each case, as Facility and the Subsidiary Credit Agreements in effect on such datedate and (b) relating to Indebtedness Incurred after the Issue Date so long as any such encumbrances or restrictions are substantially similar to encumbrances or restrictions permitted pursuant to clause (i)(a);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or i)or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this Section 3.6, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in agreements or instruments related to any Lien permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such Lien; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) purchase money obligations and Capitalized Lease Obligations for property acquired or leased in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, business that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.6 on the property so acquired or leased;
(vvi) any restriction (a) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
disposition or (vib) customary non-assignment provisions in leases and on the sale or other agreements entered into by disposition of Capital Stock of Persons that are Unrestricted Subsidiaries of the Company or any Restricted Subsidiary in are not Subsidiaries of the ordinary course of businessCompany;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions, including, without limitation, encumbrances or restrictions existing under on cash or assets in escrow accounts of deposits paid on property used in the Company's business, in each case imposed by applicable law or regulation or by reason of provisions in joint venturegovernmental licenses, partnership (limited concessions, franchises or general), limited liability company or similar agreements required in connection with the entering into of such transactionpermits;
(ix) customary encumbrances or restrictions on cash or other deposits or net worth imposed on by customers under contracts entered into in the transfer, licensing, sub-licensing and assignment ordinary course of intellectual property and of intellectual property licensesbusiness;
(x) restrictions relating customary limitations on the distribution or disposition of property or assets in joint venture agreements governing Persons that are Unrestricted Subsidiaries or are not Subsidiaries of the Company; provided that such encumbrance or restriction is applicable only to the Company or the Restricted Subsidiary entering into such joint venture agreement; and provided further that:
(a) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Securities than is customary in comparable agreements (as determined by the Company's Board of Directors); and
(b) the Company determines that any Lien permitted under this Indenture;such encumbrance or restriction will not materially affect its ability to make any anticipated principal or interest payment on the Securities; and
(xi) any other Indebtedness encumbrance or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject restriction of the Qualified Receivables Transaction;
(xii) nature described in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), clause (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders first paragraph of the Capital Stock this Section 3.6 arising by reason of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to customary non-assignment provisions in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingagreements.
Appears in 1 contract
Samples: Indenture (NCL CORP Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Borrower will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Borrower 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);
(2) make any loans or advances to the Company Borrower or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Company Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company Borrower or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) aboveof this Section 7.09(a). ).
(b) The preceding provisions restrictions in Section 7.09(a) hereof will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitationClosing Date and (to the extent not otherwise permitted by this Section 7.09) listed on Schedule 7.09 hereto, this IndentureAgreement, the Notes issued thereunder Guaranties, the Collateral Documents, the Intercreditor Agreement and the Guarantees thereof, the Existing Notes ABL Facility (and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as documentation) in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary such Person on or before the date on which such Person became a Restricted Subsidiary or was acquired (whether by mergerby, consolidation, acquisition of Capital Stock merged into or otherwise) by consolidated with the Company Borrower or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company Borrower or in contemplation of the transaction) and outstanding on such date; , provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Borrower or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Agreement;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) or (2) of this Section 7.09(b) or this Section 7.09(b)(3) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause clauses (i1) or (ii2) of this paragraph Section 7.09(b) or this clause (iiiSection 7.09(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes Lenders than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i1) or (ii2) of this paragraph Section 7.09(b) on the Issue Closing Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (3) of Section 7.09(a), Liens permitted to be incurred under the provisions of Section 7.01;
(a) purchase money obligations or mortgage financings for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesAgreement, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 7.09(a) on the property so acquired or leasedacquired;
(v6) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi7) any customary non-assignment provisions relating to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(8) net worth provisions in leases and other agreements and provisions restricting cash or other deposits in agreements entered into by the Company Borrower or any Restricted Subsidiary in the ordinary course of business;
(vii9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii10) customary encumbrances or restrictions existing under contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Subsidiary Guarantors in joint ventureaccordance with Section 7.03, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect than those applicable to the Borrower in either this Agreement or the ABL Facility on the Closing Date (which results in encumbrances or restrictions comparable to those applicable to the Borrower at a Restricted Subsidiary level);
(11) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Closing Date pursuant to clauses (5), (12), (13) or (14) of Section 7.03(b); provided that such encumbrances and restrictions than those prior contained in any agreement or instrument will not materially affect the Borrower’s ability to such amendment make anticipated principal or refinancinginterest payments on the Loans (as determined by the Board of Directors of the Borrower);
(12) encumbrances or restrictions contained in customary non-assignment provisions in leases, contracts, licenses or other agreements entered into in the ordinary course of business; and
(13) encumbrances or restrictions 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 the Borrower or any Restricted Subsidiary thereof in any manner material to the Borrower or any Restricted Subsidiary.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Issuer and the Company will shall not, and will the Company shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of the Issuer or any Restricted Subsidiary to:
: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Issuer, the 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);
; (2) make any loans or advances to the Issuer, the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer, the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Issuer, the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
or (3) transfer any of its property or assets to the Issuer, the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers b) The provisions of paragraph (a) of this Section 3.6 shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, indenture governing the Existing Notes and the Guarantees thereof Revolving Credit Facility and the any related indentures documentation and the Senior Credit Facilities, in each case, as in effect on such date;
Hedging Obligations; (ii) any encumbrance or restriction with respect to a Non-Guarantor Subsidiary pursuant to any agreement relating to Indebtedness Incurred by such Non-Guarantor Subsidiary under clause (11) of paragraph (b) of Section 3.3; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock directly or otherwise) indirectly by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired directly or indirectly by the Company or in contemplation of the transaction) and outstanding on such date; provided , provided, that any such encumbrance or restriction shall not extend to any assets or property of the Issuer, the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
acquired; (iiiiv) any encumbrance or restriction with respect to the Issuer or a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iiiii) of this paragraph or this clause (iv) or contained in any amendment to an agreement referred to in clause (i), (ii) or (iii) of this paragraph or this clause (iv); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement agreement or refinancing are notamendment are, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes no more restrictive in any material respect than the encumbrances and restrictions with respect to the Issuer or such Restricted Subsidiary contained in such agreements referred to in clause clauses (i), (ii) or (iiiii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary Subsidiary, whichever is applicable; (v) in the case of clause (3) of Section 3.6(a), any encumbrance or was acquired restriction: (whether by mergera) that restricts in a customary manner the subletting, consolidationassignment or transfer of any property or asset that is subject to a lease, acquisition license or similar contract, or the assignment or transfer of Capital Stock any such lease, license or otherwiseother contract; (b) by contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Issuer, the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or (c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer, the Company or any Restricted Subsidiary, whichever is applicable;
; (ivvi) (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.6(a) on the property so acquired acquired; (vii) any Purchase Money Note or leased;
other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Company, are necessary to effect such Qualified Receivables Transaction; (vviii) any restriction with respect to the Issuer or a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of the Issuer or such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
, subject to, in the case of the Issuer, compliance with the provisions of Section 4.1(a); (viix) any customary non-assignment provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; (x) net worth provisions or other customary provisions in leases or subleases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; (viixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
; (viiixii) customary encumbrances restrictions contained in licenses or restrictions sublicenses related to, copyrights, patents, trademarks or other intellectual property and other agreements entered into in the ordinary course of business; and (xiii) any encumbrance or restriction existing under or under, by reason of provisions in joint ventureor with respect to Indebtedness of the Issuer, partnership (limited the Company or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating any Restricted Subsidiary not prohibited to any Lien permitted be incurred under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings the encumbrances and restrictions are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with restrictive in any material respect to such than the encumbrances and restrictions than those prior contained in the agreements referred to such amendment or refinancingin clause (i) of this Section 3.6(b).
Appears in 1 contract
Samples: Indenture (Quiksilver Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Parent Guarantor shall not, and will shall not permit any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor 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 right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company any Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions will foregoing limitations shall not prohibitapply to restrictions:
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, including pursuant to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(iiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionParent Guarantor;
(iiiC) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, extension or replacement or refinancing of an agreement referred to in clause clauses (iA), (B), (F), (G), (J) or (ii) of this paragraph or this clause (iiiC) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred thereunder); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the Company’s Board of Directors or Senior Management, materially less favorableParent Guarantor), taken as a whole, to than the Holders restrictions of the Notes than the encumbrances and restrictions same type contained in such the agreements or instruments referred to in clause clauses (iA), (B), (F), (G) or (iiJ) or this clause (C) in this second paragraph of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by mergerSection 4.08, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is as applicable;
(ivD) (a) purchase money obligations for property acquired resulting from the Incurrence of any Permitted Debt as defined in the ordinary course second paragraph of businessSection 4.04; provided that if the obligor of such Debt is an Issuer or a Subsidiary Guarantor, the restriction is no less favorable to the Holders in any material respect (bas determined in good faith by the Parent Guarantor) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or than the restrictions of the nature described same type contained in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedIndenture;
(vE) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order;
(viiiF) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the properties or assets securing that Debt;
(G) encumbering properties or assets at the time the properties and assets were acquired by the Parent Guarantor or any Restricted Subsidiary, so long as the restriction relates solely to the properties and assets so acquired and was not created in connection with or in anticipation of the acquisition;
(H) resulting from customary encumbrances provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(I) which are customary restrictions contained in asset sale agreements limiting the transfer of property or assets pending the closing of the sale;
(J) existing under or by reason of provisions in joint venturethis Indenture, partnership (limited or general)the Notes, limited liability company or similar agreements required in connection with the entering into of such transactionNote Guarantees, the Exchange Notes and the related Note Guarantees;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xiK) any other Indebtedness Debt or contractual requirements Incurred with respect to a Qualified Receivables Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingagreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture and identified in Schedule 3.4 to this Indenture, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures any Qualified Receivables Transaction and the Senior Secured Credit Facilities, in each case, as Agreement in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(3), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, deeds of trust, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, deeds of trust, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction;
(vii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viviii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(ix) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(viix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Imco Recycling Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will Parent shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Parent 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 common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Company Parent or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or otherwise transfer any of its property or assets to the Company Parent or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2Section 4.05(a) above). The preceding provisions will not prohibit:
(i) (a) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, includingand any amendments, without limitationrestatements, this Indenturemodifications, 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 encumbrance or restriction than those contained in those agreements on the Issue Date and (b) any encumbrances or restrictions pursuant to or by reason of the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateDocuments;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement or instrument relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary such Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Parent or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company Parent or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Parent or any other Restricted Subsidiary other than the assets and property of the Person so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Parent and the Restricted Subsidiaries to realize the value of, property or assets of the Parent or any Restricted Subsidiary in any manner material to the Parent or any Restricted Subsidiary;
(biv) in the case of Section 4.05(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests), license (including, without limitation, licenses of intellectual property) or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) contained in Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(G) purchase money obligations, mortgage financings, Capitalized Lease Obligations permitted under this Indenture, (cIncurred pursuant to Section 4.03(b)(6) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances restrictions on the property purchased or restrictions of the nature described in clause leased; or
(3H) Liens (including pursuant to Clause (33) of the first paragraph definition of this Permitted Liens) permitted to be incurred under the provisions of Section 4.14 on 4.11 that limit the property so acquired or leased;right of the debtor to dispose of the assets subject to such Liens.
(v) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderorder or the terms of any authorization, concession or permit;
(viii) customary encumbrances any encumbrance or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) restriction contained in the case terms of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing any Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiiiSection 4.03(a) in the case of or any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; guarantees thereof or liens related thereto and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of such terms if (x) either (i) the contractsencumbrance 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 Indebtedness, instruments guarantees or obligations referred liens or (ii) the Parent determines at the time any such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially affect the Issuer‟s and the Guarantors‟ ability to make principal or interest payments on the Notes and any other Indebtedness for borrowed money that is an obligation of the Issuer or the Guarantors and (y) the encumbrance or restriction is not materially more disadvantageous to the Securityholders than is customary in clauses comparable financings or agreements (as determined by the Parent in good faith);
(ix) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(x) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(xi) any encumbrance or restriction existing under any agreement that extends, renews, refinances (including by way of Refinancing Indebtedness) or replaces the agreements containing the encumbrances or restrictions in the foregoing Clauses (i) through (xiii) abovex), or in this Clause (xi); provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment terms and the conditions of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to any such encumbrances and or restrictions are not more restrictive in any material respect than those prior under or pursuant to such amendment the agreement so extended, renewed, refinanced or refinancingreplaced.
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company Issuer or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.Issuer or
Appears in 1 contract
Samples: Indenture (ANTERO RESOURCES Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
; (2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.5 on the property so acquired acquired; (vi) any Purchase Money Note or leased;
other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; (vvii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (viviii) customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business; (ix) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; and (viix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of (including the application of standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to:
(i1) any encumbrance or restriction pursuant to an agreement restrictions in effect at or entered into on the Issue Date, including, without limitationincluding but not limited to the Credit Agreement, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateNote Guaranties;
(ii2) any encumbrance or restriction with respect restrictions relating to any agreements or instruments of a Person existing at the time it became a Restricted Subsidiary pursuant or to an agreement any agreements or instruments relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before Property at the date on which such Restricted Subsidiary was time acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a any Restricted Subsidiary (other than Capital Stock Subsidiary, in each case as if such encumbrance or Indebtedness that restriction was Incurred as consideration in, not created in connection with or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other a Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionSubsidiary;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an restrictions that result from any amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of an Debt or other agreement or instrument referred to in clause (i) this Section, if the encumbrance or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are notRefinancing is not materially more restrictive (as determined in good faith by the Company), taken as a whole, than the encumbrances or restrictions of the same type contained in the agreements or instruments referred to in this Section, as applicable;
(4) encumbrances or restrictions resulting from the Incurrence of any Permitted Debt defined in Section 4.04, if the encumbrance or restriction (i) is no less favorable to the Holders of Notes in any material respect (as determined in good faith judgment by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture and (ii) is customary for instruments of such type in the market at such time and will not materially adversely impact the ability of the Company to make required payments of principal, interest or premium or Additional Amounts, if any, on the Notes;
(5) encumbrances or restrictions existing by reason of applicable law, rule, regulation or order;
(6) with respect to Section 4.08(c) above only, encumbrances or restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;
(7) encumbrances or restrictions encumbering Property at the time the Property was acquired by the Company or any Restricted Subsidiary, so long as the encumbrance or restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(8) any encumbrances or restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(9) any encumbrance or restrictions which are customary encumbrances or restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(10) any encumbrance or restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, which encumbrances or restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors determines in good faith that such encumbrances or Senior Management, materially less favorable, taken as a whole, restrictions are not reasonably likely to impair the Holders of the Notes than the encumbrances Company’s ability to make principal and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph interest payments on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableNotes;
(iv11) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose any encumbrances or restrictions existing by reason of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedNote Documents;
(v12) any restriction encumbrance or restrictions with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii13) any encumbrance or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(14) in the case of the provision described in Section 4.08(c) of this Section, encumbrances or restrictions arising or existing by reason agreed to in the ordinary course of applicable law business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any applicable rule, regulation Restricted Subsidiary thereof in any manner material to the Company or orderany Restricted Subsidiary thereof;
(viii15) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transactionHedging Obligations;
(ix16) encumbrances or restrictions constituting customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively Securitization Subsidiary, pursuant to the assets that are the subject terms of the Qualified a Permitted Receivables TransactionFinancing or Permitted Supply Chain Financing;
(xii17) with respect to Section 4.08(c) above only, encumbrances or restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the case ordinary course for the employment, charter or other hire of Restricted Subsidiaries such property;
(18) with respect to Section 4.08(c) above only, encumbrances or restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that are not Subsidiary Guarantorssuch encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes encumbrances or restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
(19) encumbrances or restrictions on cash or other deposits or net worth imposed by customers, restrictions imposed under instruments governing Indebtedness Incurred suppliers or vendors pursuant to contracts entered into in the ordinary course of business; and
(20) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted IndebtednessBusiness Investments.”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Seadrill LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (it being understood that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common other Capital Stock shall not be deemed not to be a restriction on the ability to make distributions on Capital StockStock and (ii) the subordination of Indebtedness or other obligations shall be deemed not to be a restriction on the ability to pay such Indebtedness or other obligations);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed not to be a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) aboveof this Section 11.12(a). The preceding provisions ).
(b) Section 11.12(a) will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions pursuant to an agreement the Financing Agreement, the First Lien Notes Indenture, the Second Lien Notes Indenture, the Financing Agreement Security Agreement, the Runoff Security Agreement and all other agreements and other documentation relating to or governing the collection, disposition or administration of WMMRC-Related Assets, the Convertible Preferred Stock and, in each case, all related documentation, and other agreements or instruments in effect at or entered into on the Issue Closing Date, including, without limitation, ;
(2) this IndentureAgreement, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateNote Guarantees;
(ii3) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation of the transaction) and outstanding on such date; provided that any such thereof), which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Company or any other Restricted Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquired and property (including after-acquired by such Restricted Subsidiary after its date of acquisitionproperty);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 11.12(b) or this clause (iii4); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreementamendments, amendmentrestatements, restatementmodifications, modificationrenewals, renewalsupplements, increaserefundings, refunding, replacement replacements or refinancing are notrefinancings are, in the good faith judgment determination of the Senior Management of the Company’s Board of Directors or Senior Management, not materially less favorablerestrictive, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements and instruments referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 11.12(b) on the Issue Closing Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock merged with or otherwise) by into the Company or a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of clause (a3) of Section 11.12(a), Liens permitted to be Incurred under Section 11.10 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(6) purchase money obligations for property acquired in the ordinary course of business, (b) business and Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesAgreement, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 11.12(a) on the property so acquired or leasedacquired;
(v7) any restriction contracts for the sale or other disposition of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary non-assignment provisions in leases leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any other Regulatory Requirement;
(viii11) customary encumbrances supermajority voting provisions and other customary provisions with respect to the disposition or restrictions existing under or by reason distribution of provisions assets, each contained in joint venturecorporate charters, partnership (limited or general)bylaws, stockholders’ agreements, limited liability company or agreements, partnership agreements, and other similar agreements required agreements, in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the each case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any a Restricted Subsidiary that is not a Subsidiary GuarantorWholly Owned Subsidiary;
(12) any agreement, restrictions under the constitutive documents governing such Subsidiary: (A) instrument or Capital Stock of a Qualified Securitization Entity, or with respect to Subsidiariesany Receivables, existing on which encumbrance or restriction is not applicable to any Person, or any assets, as applicable, other than such Qualified Securitization Entity or such Receivables;
(13) customary lock-up agreements entered into in connection with a proposed sale or issuance of Capital Stock;
(14) any agreement or instrument that prohibits the Issue Date; and (B) with respect to Subsidiaries created payment or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness making of the Company dividends or another Subsidiary, (2) on dividend payments and other distributions solely to permit other than on a pro rata dividends and other distributions basis;
(15) customary provisions restricting dispositions of real property interests set forth in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiaryreciprocal easement agreement; and
(xiv16) any encumbrances other Indebtedness or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred Preferred Stock permitted to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings arebe Incurred pursuant to Section 11.09 that, in the good faith judgment determination of the Company’s Board of Directors or Senior Management, no of the Company are not materially more materially restrictive, taken as a whole, with respect than those applicable to the Company in this Agreement or the Financing Agreement on the Closing Date (which results in encumbrances or restrictions at a Restricted Subsidiary level comparable to those applicable at the Company level under this Agreement or the Financing Agreement).
(c) In each case set forth in Section 11.12(b) above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrances encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, repairs, additions, attachments and restrictions than those prior to such amendment accessions thereto, assets and property affixed or refinancingappurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1i) pay dividends or make any other distributions on its Capital Stock to, or pay any Indebtedness or other obligations owed to to, the 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);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) The provisions of transfer described in clause (1Section 6.5(a) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Closing Date, including, without limitation, including this Indenture, the Notes issued thereunder Agreement and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior a Credit Facilities, in each case, as Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or became a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause Section 6.5(b)(i), (iii) or (iiiv) of this paragraph or this clause (iii)Section 6.5(b)(iii) or contained in any amendment to an agreement referred to in any such Section; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are notno less favorable, in the good faith judgment of the Company’s Board of Directors or Senior Managementaggregate, materially less favorable, taken as a whole, in any material respect to the Holders of the Notes Lenders than the encumbrances and restrictions contained in such agreements referred to in clause Section 6.5(b)(i), (iii) or (iiiv) of this paragraph on the Issue Closing Date or the date such the applicable Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 6.5(a)(iii), any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, farm-in agreement or farm-out agreement, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) 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) with respect to the disposition or distribution of property or assets in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(E) pursuant to any merger agreements, stock purchase agreements, asset sale agreements and similar agreements limiting the transfer of any property assets pending consummation of the subject transaction; or
(F) pursuant to typical cash management plans that provide for an orderly repatriation of funds designed to optimize after-tax cash flow and agreed to by all shareholders of a Foreign Subsidiary;
(A) purchase money obligations for property acquired in the ordinary course of business, business and (bB) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesAgreement, in each case, case that impose encumbrances or restrictions of the nature described in clause (3Section 6.5(a)(iii) of the first paragraph of this Section 4.14 on the property or assets so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) substantially all of the Capital Stock or properties and assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;; and
(vivii) customary non-assignment provisions in leases and any restriction on cash or other deposits or net worth imposed by customers under agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Senior Credit and Guaranty Agreement (Pogo Producing Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Issuer or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions foregoing limitations will not prohibitapply to restrictions:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Effective Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(ii) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionIssuer;
(iii) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph above, in clause (vi), (vii) or (x) below or this clause (iii); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the CompanyIssuer’s Board of Directors or Senior Management, materially less favorableDirectors), taken as a whole, to than the Holders restrictions of the Notes than the encumbrances and restrictions same type contained in such the agreements or instruments referred to in clause clauses (i), (ii), (vi), (vii) or (iixi) of or this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired clause (whether by mergeriii), consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (aas determined in good faith by the Issuer’s Board of Directors) purchase money obligations for than the restrictions of the same type contained in this Indenture;
(v) existing by reason of applicable law, rule, regulation or order;
(vi) with respect to clause (c) above only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;
(vii) encumbering Property at the time the Property was acquired by the Issuer or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(viii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property acquired licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(ix) which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(x) existing pursuant to any Debt Incurred by a Foreign Subsidiary, (b) Capitalized Lease Obligations which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesprovided, in each casehowever, that impose encumbrances or the Issuer’s Board of Directors determines in good faith that such restrictions of are not reasonably likely to impair the nature described in clause Issuer’s ability to make principal and interest payments on the Notes; or
(3xi) of the first paragraph existing by reason of this Section 4.14 on Indenture, the property so acquired or leasedNotes offered hereby, and the Note Guarantees;
(vxii) any restriction with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viixiii) encumbrances on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xiixiv) in the case of the provision described in clause (c) of the first paragraph of this covenant; arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant thereof in any manner material to the definition of “Permitted Indebtedness”Issuer or any Restricted Subsidiary thereof;
(xiiixv) contained in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such SubsidiaryHedging Obligations; and
(xivxvi) any encumbrances or constituting customary restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior a Securitization Subsidiary, pursuant to such amendment or refinancingthe terms of a Permitted Receivables Financing.
Appears in 1 contract
Samples: Indenture (Energizer Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary (other than a Subsidiary Guarantor) 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 (other than a Subsidiary Guarantor) to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its assets or property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will .
(b) Section 4.08(a) shall not prohibitapply to any encumbrances or restrictions existing under or by reason of:
(i1) contractual encumbrances or restrictions of the Company or any encumbrance or restriction pursuant to an agreement of its Restricted Subsidiaries in effect at or entered into on the Issue Date, including, without limitation, pursuant to the Senior Credit Facility, the Ex-Im Credit Facility, the Existing Notes, the Security Documents, the Collateral Trust Agreement, the Intercreditor Agreement, related Hedging Obligations and Indebtedness permitted pursuant to clause (3) of Section 4.09(b);
(2) this Indenture, the Notes issued thereunder and the Guarantees thereofSubsidiary Guarantees;
(3) any agreement or other instrument of a Person acquired by or merged, amalgamated or consolidated with or into the Existing Notes and Company or any Restricted Subsidiary or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, in each case that was in existence at the Guarantees thereof and time of such acquisition (or at the related indentures and time it merges, amalgamates or consolidates with or into the Senior Credit FacilitiesCompany or any Restricted Subsidiary or is assumed in connection with the acquisition of assets or property from such Person) or designation, but, in each case, as not created in effect on such date;
(ii) any contemplation thereof, which encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating is not applicable to any Capital Stock Person, or Indebtedness Incurred by a Restricted Subsidiary on the assets or before the date on which such Restricted Subsidiary was acquired (whether by mergerproperty of any Person, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration inthe Person and its Subsidiaries, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Person and its Subsidiaries, so acquired or any other Restricted Subsidiary other than the designated (including after-acquired assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionproperty);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing in the case of an agreement referred to in clause (i) or (ii3) of this paragraph Section 4.08(a), Permitted Liens or this clause (iii); provided, however, Liens otherwise permitted to be Incurred under the provisions of Section 4.12 that limit the encumbrances and restrictions with respect right of the debtor to dispose of assets or property subject to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableLiens;
(iv) (a5) purchase money obligations for property acquired in the ordinary course of businessobligations, (b) mortgage financings, Capitalized Lease Obligations and similar obligations or agreements permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.08(a) with respect to the first paragraph of this Section 4.14 on the assets or property so acquired purchased, acquired, financed, designed, developed, leased, constructed, repaired, replaced, maintained, installed, improved or leasedinsured in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(v6) any restriction encumbrances or restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition transfer or other disposition of Capital Stock all or otherwise) a portion of the Capital Stock Stock, assets or assets property of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi7) customary non-assignment restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(8) any provisions in leases joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(9) any provisions in leases, subleases, licenses, sublicenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of businessbusiness or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(vii10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(viii11) customary encumbrances or restrictions existing under arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the assets or property of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary (as determined by reason of provisions the Company in joint venture, partnership (limited or generalgood faith), limited liability company or similar agreements required (y) materially affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in connection with the entering into of such transactiongood faith);
(ix12) customary contractual encumbrances or restrictions imposed on contained in any Debt Facilities or other Indebtedness Incurred by the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
Company in accordance with Section 4.09 that (x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantorsmaterially more restrictive, restrictions imposed under instruments governing Indebtedness Incurred pursuant to when taken as a whole, than those applicable in either this Indenture or the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing Senior Credit Facility on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of as determined by the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiarygood faith), or (3y) limiting transactions with do not adversely affect the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such SubsidiaryCompany’s ability to transfer assets make payments of principal or Incur Indebtedness without interest payments on the consent of Notes when due (as determined by the holders of the Capital Stock of such SubsidiaryCompany in good faith); andor
(xiv13) any encumbrances or restrictions imposed by any amendmentsamendment, restatementsrestatement, modificationsmodification, renewalsrenewal, increasesincrease, restrictionssupplement, encumbrancesextension, refundingsrefunding, replacements replacement or refinancings refinancing of any of the contracts, agreements or other instruments or obligations referred to in the immediately preceding clauses (i1) through (xiii12) aboveof this Section 4.08(b); provided provided, however, that the encumbrances or restrictions contained in such amendmentsamendment, restatementsrestatement, modificationsmodification, renewalsrenewal, increasesincrease, restrictionssupplement, encumbrancesextension, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no not materially more materially restrictive, when taken as a whole, with respect to such than the encumbrances and restrictions than those prior to such amendment amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2However, Section 4.10(a) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (i12) or (ii) of this paragraph or this clause (iii6) of this Section 4.10(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of Section 4.10(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.10(a) on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely any of its Restricted Subsidiaries permitted to permit pro rata dividends and other distributions be Incurred pursuant to an agreement entered into subsequent to the Issue Date in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.accordance with
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will Parent Guarantor shall not, and will shall not permit any Restricted Subsidiary to, to 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:
(1i) pay dividends or make any other distributions on its Capital Stock to the Parent Guarantor or any Restricted Subsidiary;
(ii) pay any Indebtedness or other obligations owed to the Company Parent Guarantor or any Restricted Subsidiary Subsidiary;
(it being understood iii) make loans or advances to the Parent Guarantor or any Restricted Subsidiary; or
(iv) transfer any of its properties or assets to the Parent Guarantor or any 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 shall not be deemed a restriction on the ability to make distributions on Capital Stock);
common stock or ordinary shares and (2y) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any payment blockage, standstill or turnover requirements) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans constitute such an encumbrance or advances); orrestriction.
(3b) transfer any The provisions of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers Section 4.15(a) above shall not include any type prohibit encumbrances or restrictions existing under, by reason of transfer described in clause (1) or (2) above). The preceding provisions will not prohibitwith respect to:
(i) any encumbrance applicable law, rule, regulation, order or restriction pursuant to governmental license, permit or concession;
(ii) an agreement in effect at or entered into on the Issue first Utilization Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(iiiii) an agreement or instrument (a “Refinancing Agreement”) effecting a Refinancing of Indebtedness or Disqualified Stock incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument or obligation in effect or entered into on the first Utilization Date (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction with respect other modifications to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment are not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement relates (as determined in good faith by the Parent Guarantor);
(iv) a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary Parent Guarantor (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transactionParent Guarantor) and outstanding on such date; provided ;
(v) any agreement or instrument (A) relating to any Indebtedness or Disqualified Stock permitted to be Incurred subsequent to the first Utilization Date pursuant to the provisions of Section 4.06 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in the Super-Priority Subscription Agreement Documents (as determined in good faith by the Parent Guarantor) or (ii) if the encumbrances and restrictions, taken as a whole, are not more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Parent Guarantor) and either (x) the Parent Guarantor determines that any such encumbrance or restriction shall will not extend adversely affect the Parent Guarantor’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness; (B) constituting an intercreditor agreement on terms substantially equivalent to the Intercreditor Agreement; or (C) relating to any assets loan or property of advance by the Company or any other Parent Guarantor to a Restricted Subsidiary other subsequent to the first Utilization Date, provided that with respect to clause (C) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the assets encumbrances and property so acquired restrictions contained in the Senior Credit Agreement and property acquired by such Restricted Subsidiary after its date of acquisitionthe Intercreditor Agreement (as in effect on the first Utilization Date);
(iiivi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (ix) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (including by way of merger or the property or assets that are subject to such restrictionconsolidation) pending the closing of such sale or dispositiondisposition or (y) relating to the distribution or disposition of assets in a joint venture;
(vivii) any encumbrance or restriction (x) on cash or other deposits or net worth imposed by customers or suppliers or (y) permitted under Section 4.08;
(viii) customary non-assignment provisions in leases and other agreements entered into by governing leasehold interests to the Company extent such provisions restrict the transfer of the lease or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances property leased thereunder or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into subletting of such transactionproperty;
(ix) customary restrictions imposed on any escrow agreement, pledge of proceeds of Asset Dispositions, security agreement or mortgage securing Indebtedness of a Restricted Subsidiary to the transferextent such encumbrance or restriction restricts the transfer of the property subject to such escrow agreement, licensingpledge of proceeds of Asset Dispositions, sub-licensing and assignment of intellectual property and of intellectual property licensessecurity agreements or mortgages;
(x) restrictions any agreement relating to any Lien permitted under this Indenture;Purchase Money Indebtedness for property acquired and Capital Lease Obligations of a type described in subsection (a)(iv) above that impose restrictions on the property so acquired; and
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingHedging Obligations.
Appears in 1 contract
Samples: Senior Secured Facility Agreement (TPG Advisors IV, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company (a) ARP will not, and will not permit any Restricted Subsidiary to, 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company ARP 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);
(2ii) make any loans or advances to the Company ARP or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company ARP or any Restricted Subsidiary to other Indebtedness Incurred by the Company ARP or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Company ARP or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of (a) an agreement in effect at or entered into on the Issue Date, including, without limitation, Date and (b) this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock ARP or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Person was acquired by ARP or a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company ARP or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of ARP and the Restricted Subsidiaries to realize the value of, property or assets of ARP or any Restricted Subsidiary in any manner material to ARP or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of ARP or any Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuers determine that any such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Company);
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph (b) or this clause (6) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (i) or (ii12) of this paragraph (b) or this clause (iii6); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (i) or (ii12) of this paragraph (b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv7) in the case of Section 4.11(a)(iii), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or other contract;
(b) arising from Permitted Liens securing Indebtedness of ARP or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of ARP or any Restricted Subsidiary;
(d) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(e) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(f) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.11(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv12) any encumbrances or restrictions imposed by the Senior Secured Credit Agreement as in effect as of the Issue Date, and any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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 and any subordination of any such Indebtedness or other obligations being deemed not be deemed a restriction on the ability to make distributions on Capital Stockconstitute such encumbrances or restrictions);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall being deemed not be deemed a restriction on the ability to make loans constitute such an encumbrance or advancesrestriction); or
(3iii) transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2Section 4.09(a) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder Notes, the Senior Secured Credit Agreement, the credit agreement governing the Second Lien Term Loan and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and indenture governing the Senior Credit Facilities, in each case, as in effect on such dateSecond Lien Notes;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such the Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transactiontransaction or transactions) and outstanding on such date; provided provided, however, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph (b) or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph (b) or this clause (iii), including successive refundings, replacements or refinancings; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph (b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 4.09(a)(iii), any encumbrance or restriction:
(aA) 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;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business, business and (bB) Capitalized Capital Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.09(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) customary non-assignment encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment”;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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)Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) However, paragraph (a) of transfer described in clause (1) or (2) above). The preceding provisions this Section 4.12 will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of (i) an agreement in effect at or entered into on the Existing Second Lien Notes Issue Date, including, without limitation, this Indenture, the Existing Second Lien Notes issued thereunder Indenture and the Guarantees thereof, the Existing Notes security documents entered into in connection therewith and (ii) this Indenture and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Security Documents as in effect on such datethe Issue Date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 4.12(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (i12) or (ii) of this paragraph or this clause (iii6) of this Section 4.12(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of Section 4.12(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture which are not included in the definition of Indebtedness pursuant to clause (3) of the penultimate paragraph of the definition thereof;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(E) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.12(a) on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) substantially all of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Existing Second Lien Notes Issue Date in accordance with Section 4.09; provided, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than could have been obtained the provisions contained in an arm’s-length transaction with an unrelated third partythe First Lien Credit Agreement, and the Existing Second Lien Notes Indenture as in effect on the Existing Second Lien Notes Issue Date;
(413) limiting the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such Subsidiary’s Preferred Stock is permitted pursuant to Section 4.09 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to transfer assets pay dividends or Incur Indebtedness without the consent of the holders of the make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the First Lien Credit Agreement as in effect as of the Existing Second Lien Notes Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no are not materially more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the First Lien Credit Agreement as in effect on the Existing Second Lien Notes Issue Date.
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2However, Section 5.10(a) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Note Documents as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a re-funding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 5.10(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refundingre-funding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (i12) or (ii) of this paragraph or this clause (iii6) of this Section 5.10(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being re-funded, replaced or refinanced;
(7) in the case of clause (i3) of Section 5.10(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) restrictions on cash, Cash Equivalents, or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property or transfer of Capital Stock in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 5.10(a) on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law Legal Requirements or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 5.07; provided, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partythe Company taken as a whole, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without as determined by the consent Board of Directors of the holders Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such Preferred Stock is permitted pursuant to Section 5.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictionssupplements, encumbrances, refundingsre-fundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) aboverefinancing thereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictionssupplements, encumbrances, refundingsre-fundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any 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 Restricted Subsidiary to other Indebtedness Debt Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1(a) or (2(b) above). The preceding provisions foregoing limitations will not prohibitapply to:
(i1) any encumbrance or restriction pursuant to an agreement restrictions in effect at or entered into on the Issue Date, including, without limitation, this Indenture, but not limited to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(ii2) restrictions relating to any encumbrance agreements or restriction with respect to instruments of a Person existing at the time it became a Restricted Subsidiary pursuant or to an agreement any agreements or instruments relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before Property at the date on which such Restricted Subsidiary was time acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a any Restricted Subsidiary (other than Capital Stock Subsidiary, in each case if such restriction was not created in connection with or Indebtedness that was Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or such Property was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other a Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionSubsidiary;
(iii3) restrictions that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of an Debt or other agreement or instrument referred to in clause (i) or (ii) of this paragraph or this clause (iii); providedSection 4.08, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are notRefinancing is not materially more restrictive (as determined in good faith by the Company), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in this Section 4.08, as applicable;
(4) restrictions resulting from the Incurrence of any Permitted Debt defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith judgment by the Company’s Board of Directors) than the restrictions of the same type contained in this Indenture;
(5) restrictions existing by reason of applicable law, rule, regulation or order;
(6) with respect to clause (c) above only, restrictions relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt;
(7) restrictions encumbering Property at the time the Property was acquired by the Company or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(8) restrictions resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(9) restrictions which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(10) restrictions existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, determines in good faith that such restrictions are not reasonably likely to impair the Holders of the Notes than the encumbrances Company’s ability to make principal and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph interest payments on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableNotes;
(iv11) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions existing by reason of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedNote Documents;
(v12) any restriction restrictions with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases joint venture agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii13) encumbrances restrictions on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii14) in the case of Restricted Subsidiaries that are not Subsidiary Guarantorsthe provision described in clause (c) of this Section 4.08, restrictions imposed under instruments governing Indebtedness Incurred arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(15) restrictions contained in Hedging Obligations;
(16) restrictions constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the definition terms of “a Permitted Indebtedness”Receivables Financing;
(xiii17) with respect to clause (c) above only, restrictions on property under a charter, lease, sub-lease or other agreement (including any Drilling Contracts, charterparty agreements, rig operating, service or management agreements or pool agreements) that has been entered into in the case ordinary course for the employment, charter or other hire of such property;
(18) with respect to clause (c) above only, restrictions resulting from (i) any Drilling Contracts with respect to any Vessels; provided that such encumbrance or restriction only extends to the Vessel or other such asset (other than cash or Cash Equivalents) subject to such Drilling Contract or (ii) any joint venture agreement or similar arrangement with respect to any joint venture that imposes restrictions on the transfer or assignment of the Capital Stock in such joint venture or Property of such joint venture;
(19) restrictions on cash or other deposits or net worth imposed by customers, suppliers or vendors pursuant to contracts entered into in the ordinary course of business;
(20) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Domestic Subsidiary; and
(xiv21) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such customary encumbrances and restrictions than those prior to such amendment or refinancingcontained in agreements of the types described in the definition of “Permitted Business Investments.”
Appears in 1 contract
Samples: Indenture (Valaris LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will .
(b) Section 6.10(a) of this Third Supplemental Indenture shall not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this the Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Facility (and related documentation) in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to any Capital Stock or agreement (including an agreement relating to any Capital Stock or Indebtedness Indebtedness) Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary became a Restricted Subsidiary or was merged with or into or consolidated with or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date all improvements, additions and accessions thereto and products and proceeds thereof, and that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to the Indenture;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing, in whole or in part, of Indebtedness Incurred pursuant to an agreement referred to in clause (1) or (2) of this Section 6.10(b) or this clause (3) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i1) or (ii2) of this paragraph Section 6.10(b) or this clause (iii3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, not materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i1) or (ii2) of this paragraph Section 6.10(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (3) of Section 6.10(a) of this Third Supplemental Indenture, encumbrances and restrictions in agreements governing Liens permitted to be incurred under the provisions of Section 6.09 of this Third Supplemental Indenture;
(5) (ai) purchase money obligations for property acquired in the ordinary course of business, business and (bii) Capitalized Lease Obligations permitted under this the Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph Section 6.10(a) of this Section 4.14 Third Supplemental Indenture on the property so acquired or leasedacquired;
(v6) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi7) any customary non-assignment encumbrances or restrictions imposed pursuant to any agreement constituting a Permitted Business Investment;
(8) restrictions on cash or other deposits and net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii10) customary encumbrances or restrictions existing under contained in Credit Facilities, indentures, other debt agreements and Hedging Obligations Incurred by the Company or any Restricted Subsidiary or Preferred Stock issued by reason Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 6.06 of this Third Supplemental Indenture; provided that such encumbrances and restrictions contained in any such agreement or instrument shall not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined by the Board of Directors of the Company);
(11) customary supermajority voting provisions and other similar provisions contained in joint venturecorporate charters, partnership (limited or general)bylaws, stockholders’ agreements, limited liability company or agreements, partnership agreements, joint venture agreements and other similar agreements required in connection with the entering into of such transactionagreements;
(ix12) customary encumbrances and restrictions imposed on contained in contracts entered into in the transferordinary course of business, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions not relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness Indebtedness, and that do not, individually or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case aggregate, detract from the value of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created property or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness assets of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect any Restricted Subsidiary or the ability of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another such Restricted Subsidiary to those with terms that are fair and reasonable realize such value, or to make any distributions relating to such Subsidiary and no less favorable to such Subsidiary than could have been obtained property or assets in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiaryeach case in any material respect; and
(xiv13) any encumbrances restrictions on the transfer of property or restrictions imposed assets required by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements regulatory authority having jurisdiction over the Company or refinancings any Restricted Subsidiary or any of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingtheir businesses.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) However, paragraph (a) of transfer described in clause (1) or (2) above). The preceding provisions this Section 4.10 will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, Indenture as in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 4.10(b) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (i12) or (ii) of this paragraph or this clause (iii6) of this Section 4.10(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such the agreements referred to governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (i3) of Section 4.10(a) above, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(iiB) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted SubsidiarySubsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, whichever is applicablepledges or other security agreements;
(ivC) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.10(a) on the property so acquired or leasedacquired;
(v9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi10) any customary non-assignment provisions in leases and other agreements entered into by encumbrances or restrictions imposed pursuant to any agreement of the Company or any Restricted Subsidiary type described in the ordinary course definition of business“Permitted Business Investment”;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii12) customary encumbrances or restrictions existing under or by reason of provisions contained in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiaryany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.07; provided, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account that the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable provisions relating to such Subsidiary and no encumbrance or restriction contained in such Indebtedness are not materially less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third partythe Company taken as a whole, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without as determined by the consent Board of Directors of the holders Company in good faith, than the provisions contained in the Senior Secured Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such Preferred Stock is permitted pursuant to Section 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of such Subsidiarybusiness; and
(xiv16) any encumbrances encumbrance or restrictions imposed by restriction contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) abovethereof; provided that such amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, are no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances dividend and other payment restrictions than those prior to such amendment or refinancingcontained in the Senior Secured Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions will paragraph shall not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Exchange Securities, the Subsidiary Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; , provided , that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities (as determined by the Company in its good faith judgment) than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this covenant, any Permitted Lien and encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract; or
(b) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction relating to a Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are customary to effect such Qualified Receivables Transaction;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 covenant on the property so acquired or leasedacquired;
(vvii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viviii) customary non-assignment net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(x) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred by Subsidiary Guarantors in accordance with Section 3.3, that are not more restrictive, taken as a whole, than those applicable to the Company in the Indenture (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level);
(xi) encumbrances or restrictions with respect to Restricted Subsidiaries that are not Subsidiary Guarantors, that are Incurred subsequent to the Issue Date pursuant to clause (12) of the second paragraph of Section 3.3, by Restricted Subsidiaries, provided that after giving effect to such Incurrence of Indebtedness, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first paragraph of Section 3.3; and
(xii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above)Subsidiary. The preceding provisions will shall not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture and identified in an annex to this Indenture, including, without limitation, this Indenture, the Notes issued thereunder Indenture and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Amended Credit Facilities, in each case, as Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided , provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this covenant, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 covenant on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) substantially all of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) customary non-assignment any provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) encumbrances or restrictions (a) contained in indentures or other debt instruments or debt arrangements Incurred by any Subsidiary Guarantor in accordance with Section 3.2 that are not more materially restrictive, taken as a whole, than those applicable to the Company in either this Indenture or the Amended Credit Facility on the date of this Indenture (which may result in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level) or (b) with respect to Restricted Subsidiaries that are not Subsidiary Guarantors, that are Incurred subsequent to the Issue Date pursuant to clause (12) of the second paragraph of Section 3.2 by Restricted Subsidiaries, provided that after giving effect to such incurrence of Indebtedness under clause (b) above, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first paragraph of Section 3.2;
(ix) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(viix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Argo Tech Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations indebtedness owed to the Company or any of its Restricted Subsidiary (it being understood Subsidiaries; provided that the priority that any series of any Preferred Stock of a Restricted Subsidiary has in receiving dividends dividends, distributions or liquidating distributions prior to dividends before dividends, distributions or liquidating distributions being are paid on Common Stock in respect of common stock of such Restricted Subsidiary shall not be deemed constitute a restriction on the ability to make dividends or distributions on Capital Stock)Stock for purposes of this covenant;
(2) make any loans or advances to the Company or any of its Restricted Subsidiary Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiary Subsidiaries to other Indebtedness Incurred 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); oror |
(3) sell, lease or transfer any of its property properties or assets to the Company or any of its Restricted Subsidiary (it being understood that such transfers shall Subsidiaries. However, the preceding restrictions will not include any type of transfer described in clause apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofNote Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of the covenant described in Section 3.2 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are, in the reasonable good faith judgment of an officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Existing Notes and the Note Guarantees thereof or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any agreement or other instrument 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 agreement or instrument was created in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the related indentures property or assets of the Person and its Subsidiaries, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the Senior Credit Facilitiesencumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, as entered into in effect on such datethe ordinary course of business;
(ii7) purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph; |
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of the covenant described in Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business;
(16) any encumbrance or restriction with respect to a Restricted an Unrestricted Subsidiary pursuant to or by reason of an agreement relating that the Unrestricted Subsidiary is a party to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or entered into before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Unrestricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such dateSubsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by of such Restricted Subsidiary after its date of acquisition;Unrestricted Subsidiary; and
(iii17) any encumbrance contractual encumbrances or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to restrictions in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph effect on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesand, in each case, that impose any similar contractual encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed effected by any amendments, modifications, restatements, modifications, renewals, increases, restrictions, encumbrancessupplements, refundings, replacements or refinancings of such agreements or instruments. In each case set forth above, notwithstanding any stated limitation on the contractsassets or property that may be subject to such encumbrance or restriction, instruments an encumbrance or obligations referred restriction on a specified asset or property or group or type of assets or property may also apply to in clauses (i) through (xiii) above; provided that such amendmentsall improvements, restatementsadditions, modificationsrepairs, renewalsattachments or accessions thereto, increasesassets and property affixed or appurtenant thereto, restrictions, encumbrances, refundingsparts, replacements or refinancings areand substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.thereof. |
Appears in 1 contract
Samples: Indenture (Earthstone Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
; (2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) The provisions of transfer described in clause (1Section 3.6(a) or (2) above). The preceding provisions will not prohibit:
: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, including without limitation, this Indenture, the Notes issued thereunder Subsidiary Guarantee, the Collateral Documents, the Intercreditor Agreement, the ABL Credit Agreement, the ABL Loan Documents, the Term Loan Credit Agreement and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
Term Loan Documents; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
acquired; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 3.6(b)(i) or (iib)(ii) of this paragraph or this clause Section 3.6(b)(iii) or contained in any amendment to an agreement referred to in Section 3.6(b)(i) or (iiib)(ii) or this Section 3.6(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, any material respect to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause (iSection 3.6(b)(i) or (iib)(ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary Subsidiary, whichever is applicable; (iv) in the case of Section 3.6(b)(iii), any encumbrance or was acquired restriction (whether by mergera) that restricts in a customary manner the subletting, consolidationassignment or transfer of any property or asset that is subject to a lease, acquisition license or similar contract, or the assignment or transfer of Capital Stock any such lease, license or otherwiseother contract; (b) by contained in mortgages, pledges or other security agreements permitted under the Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or (c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, whichever is applicable;; (v)
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.6(a) on the property so acquired or leased;
acquired; (vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (vivii) customary non-assignment net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; and (viiviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to (x) an agreement in effect at or entered into on the Issue Datedate of this Indenture, including, without limitation, this IndentureIndenture and the Notes and Note Guarantees issued thereunder, the Senior Subordinated Indenture and the Senior Subordinated Notes and Senior Subordinated Note Guarantees issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such datedate or (y) the Senior Credit Facilities in effect at the time of the closing of the Acquisition;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, not materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company venture or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing transfer and assignment of intellectual property and of intellectual property licensesproperty;
(x) restrictions relating to any Lien permitted under this IndentureIndenture imposed by the holder of such Lien;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to existing Subsidiaries, existing on the Issue Datedate of this Indenture; and (B) with respect to Subsidiaries created or acquired after the Issue Date date of this Indenture: (1) prohibiting such Subsidiary from Guaranteeing guaranteeing Indebtedness of the Company or another Subsidiary, ; (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), ; (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, ; and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements amendments or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements amendments or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior ManagementDirectors, no more materially restrictive, taken as a whole, restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Davita Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, to 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiary Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits (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);
(2ii) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1i) or (2ii) aboveof this Section 3.6(a). ).
(b) The preceding provisions will restrictions in Section 3.6(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Subsidiary Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person or assets pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary in effect on or before the date on which such Person became a Restricted Subsidiary or was acquired (whether by mergerby, consolidation, acquisition of Capital Stock merged into or otherwise) by consolidated with the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company or in contemplation of the transaction) and outstanding on or such dateassets were acquired by the Company or any Restricted Subsidiary; provided provided, that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Company or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this Section 3.6(b) or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing Refinancing of an agreement referred to in clause (i) or (ii) of this paragraph Section 3.6(b) or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable (as determined in the good faith judgment of Good Faith by the Company’s Board of Directors or Senior Management, materially less favorable) in any material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph Section 3.6(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock merged into or otherwise) by the Company or consolidated with a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.6(a)(iii), encumbrances or restrictions arising in connection with Liens permitted to be Incurred under the provisions of Section 3.5 hereof that apply only to the assets subject to such Liens;
(av) purchase money obligations for property acquired in the ordinary course of business, (b) and Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leasesObligations, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.6(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vivii) restrictions on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
(viii) any customary non-assignment provisions in leases leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, order, permit or order;
(viii) customary encumbrances grant, including for the avoidance of doubt, any encumbrance or restrictions existing under or restriction on any Insurance Subsidiary by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with any governmental authority having the entering into of power to regulate such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licensesInsurance Subsidiary;
(x) encumbrances or restrictions relating contained in or arising under indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by the Company or any Restricted Subsidiary subsequent to any Lien permitted under the Issue Date pursuant to Section 3.3 hereof that are not more restrictive, taken as a whole (as determined in Good Faith by the Company), than those applicable to the Company in this IndentureIndenture on the Issue Date;
(xi) encumbrances or restrictions contained in or arising under indentures or other debt instruments or other debt arrangements Incurred or Preferred Stock issued by the Company or any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively Subsidiary subsequent to the Issue Date pursuant to Section 3.3 hereof or contained or arising in connection with any Reinsurance Agreement or Statutory Reserve Financing or agreement entered into by an Insurance Subsidiary or Special Purpose Subsidiary; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially adversely affect the Company’s ability to make anticipated principal or interest payments on the Notes or are otherwise customary for financings or arrangements of that type (in each case, as determined in Good Faith by the Company);
(xii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase or other agreement to which the Company or any of its Restricted Subsidiaries is a party and entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject of such agreement, the Qualified Receivables Transactionpayment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary.
(xiii) customary provisions in joint venture agreements and other similar agreements;
(xiixiv) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business; and
(xv) any instrument governing any Indebtedness or Capital Stock of a Person that is an Unrestricted Subsidiary as in effect on the date that such Person becomes a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person who became a Restricted Subsidiary or the property or assets of the Person who became a Restricted Subsidiary, and was not entered into in contemplation of the designation of such Subsidiary as a Restricted Subsidiary; provided that in the case of Restricted Subsidiaries that are not Subsidiary GuarantorsIndebtedness, restrictions imposed under instruments governing the incurrence of such Indebtedness Incurred pursuant to the definition as a result of “Permitted Indebtedness”;
(xiii) in the case of any such Person becoming a Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under was permitted by the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness terms of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingthis Indenture.
Appears in 1 contract
Samples: Indenture (Fidelity & Guaranty Life)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement, the Floating Rate Notes (and the Guarantees thereof and the related indentures documentation) and the Senior Secured Credit Facilities, in each case, as Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary such Person on or before the date on which such Person became a Restricted Subsidiary or was acquired (whether by mergerby, consolidation, acquisition of Capital Stock merged into or otherwise) by consolidated with the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company or in contemplation of the transaction) and outstanding on such date; provided , provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes Securities than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this Section 3.4, Liens permitted to be incurred under the provisions of Section 3.6;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 3.4 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) any customary non-assignment provisions in joint venture agreements relating to joint ventures and other similar agreements entered into in the ordinary course of business, provided that if such joint venture is a Restricted Subsidiary, such provisions will not materially affect the Company’s ability to make anticipated principal or interest payments on the Securities (as determined by the Board of Directors of the Company);
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viiix) customary encumbrances or restrictions existing under contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by reason of provisions Subsidiary Guarantors in joint ventureaccordance with Section 3.2, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect than those applicable to the Company in either this Indenture or the Senior Secured Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xi) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to clauses (5), (12), (13) and (14) of the second paragraph of Section 3.2, by Restricted Subsidiaries, provided that such encumbrances and restrictions than those prior contained in any agreement or instrument will not materially affect the Company’s ability to such amendment make anticipated principal or refinancinginterest payments on the Securities (as determined by the Board of Directors of the Company).
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will Borrower shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Equity Interests to the Borrower or any other Restricted Subsidiary,
(ii) pay any Indebtedness or other obligations obligation owed to the Company Borrower, a Subsidiary Guarantor or any other 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);Subsidiary,
(2iii) make any loans or advances to the Company Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); Subsidiary, or
(3iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2) above). The preceding provisions foregoing limitations will not prohibitapply:
(i) any encumbrance or restriction pursuant With respect to an agreement in effect at or entered into on the Issue DateSections 8.08(a)(i), including(ii), without limitation(iii) and (iv), this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as to restrictions which are:
(A) in effect on the Closing Date (as such daterestrictions may be amended from time to time, provided that any such amendment is not materially more restrictive as to such Restricted Subsidiary);
(iiB) imposed by any encumbrance Credit Document or restriction First-Lien Credit Document;
(C) imposed by the Credit Agreement with respect to Indebtedness permitted to be Incurred on or subsequent to the Closing Date (as such restrictions may be amended from time to time, provided that any such restriction is not materially more restrictive as to such Restricted Subsidiary);
(D) relating to Indebtedness of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company Borrower or a Subsidiary Guarantor (as such restrictions may be amended from time to time in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall a manner not extend materially more restrictive as to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionSubsidiary);
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary that result from the refinancing of Indebtedness incurred pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause Section 8.08(b)(i)(A), (iB) or (iiD) of this paragraph or this clause (iii)above; provided, however, that the encumbrances and restrictions with provided such restriction is no less favorable in any material respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of Lenders than those under the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to agreement evidencing the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableIndebtedness so refinanced;
(ivF) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds restrictions on cash or (d) operating leases, in each case, that impose encumbrances other deposits or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired net worth imposed by leases or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiG) any encumbrances or restrictions arising required by any foreign or existing by reason of applicable law governmental, local or regulatory authority having jurisdiction over the Borrower, or any applicable ruleRestricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Borrower, regulation or orderany Restricted Subsidiary by such governmental authority;
(viiiH) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company venture or similar agreements required or other arrangements with minority investors in connection with Restricted Subsidiaries and customary provisions in Indebtedness incurred by Restricted Subsidiaries organized outside the entering into United States; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that (i) the encumbrance or restriction is customary in comparable agreements and (ii) the Borrower determines that any such encumbrance or restriction will not materially affect the ability of such transactionthe Borrower to make any anticipated payments of the Obligations;
(ixI) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the transfer, disposition or distribution of such property pending the closing of such sale, including any restriction imposed with respect to such Restricted Subsidiary pursuant to an agreement to dispose of all or substantially all the Equity Interests or assets of such Restricted Subsidiary;
(J) customary restrictions imposed on the transfer, licensing, sub-licensing transfer or use of copyrighted or patented materials or other Intellectual Property and customary provisions in agreements that restrict the assignment of intellectual property and of intellectual property licensessuch agreements or any rights thereunder or in leases governing leasehold interests;
(xK) restrictions relating to any Lien permitted under this Indentureagreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions of assets (including Equity Interests) by that Restricted Subsidiary pending its sale or other disposition;
(xiL) any other restrictions on Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of incurred by any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Foreign Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendmentsrestrictions are then customary for Indebtedness of such type incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, restatementsrule, modificationsregulation or order applicable to the Borrower or any Restricted Subsidiary.
(ii) With respect to Section 8.08(a)(iv) only, renewals, increases, to restrictions, encumbrances, refundings, replacements or refinancings are, in :
(A) relating to Indebtedness that is permitted to be incurred and secured without also securing the good faith judgment Obligations pursuant to 8.01 that limit the right of the Company’s Board debtor to dispose of Directors the property securing such Indebtedness;
(B) encumbering property at the time such property was acquired by the Borrower or Senior Managementany Restricted Subsidiary, no more materially restrictiveso long as such restrictions relate solely to the property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any transfer of, taken as a wholeagreement to transfer, option or right with respect to such encumbrances and restrictions than those prior or Lien on any property of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement; or
(E) imposed under any purchase money Indebtedness described in Section 8.01(g) or Capitalized Lease Obligation in the ordinary course of business with respect only to such amendment or refinancingthe property the subject thereof.
Appears in 1 contract
Samples: Second Lien Credit Agreement (HUGHES Telematics, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Guarantor will not, and will not permit any Restricted 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:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest in or participation in or measured by its profits, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Guarantor or any a 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)Subsidiary;
(2b) make any loans or advances to the Company Guarantor or any a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3c) transfer any of its property or assets to the Company Guarantor or any a Restricted Subsidiary (it being understood that such transfers Subsidiary. The foregoing limitation shall not include any type of transfer described in clause apply:
(1A) or (2) above). The preceding provisions will not prohibitto encumbrances and restrictions:
(i) in existence under or by reason of any encumbrance or restriction pursuant to an agreement agreements (not otherwise described in clause (A) (iii) below) in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any relating to Debt of a Restricted Subsidiary and existing at such Restricted Subsidiary at the time it became a Restricted Subsidiary if such encumbrance or restriction was not created in connection with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionGuarantor;
(iii) any encumbrance or restriction with respect set forth in the Bank Credit Facility;
(iv) applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Senior Debt, provided that the provisions of such agreement do not prevent (other than following an event of default on such Senior Debt) the payment of interest and mandatory payment or mandatory prepayment of principal pursuant to an the terms of this Indenture and the Notes, but provided further that such agreement effecting an amendmentmay nevertheless contain customary net worth, restatementleverage, modificationinvested capital and other financial covenants, customary covenants regarding the merger of or sale of all or any substantial part of the assets of the Guarantor or any Restricted Subsidiary, customary restrictions on transactions with Affiliates, and customary subordination provisions governing Debt owed to the Guarantor or any Restricted Subsidiary; or
(v) which result from the renewal, increaserefinancing, refunding, replacement extension or refinancing amendment of an agreement referred to in clause clauses (iA)(i), (ii) or (iii) above or in clauses (B)(i) or (ii) of this paragraph or this clause (iii); below, provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained encumbrance or restriction is no less favorable in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorablematerial respect, taken as a whole, to the Holders of the Notes than those under the encumbrances agreement evidencing the Debt so renewed, refinanced, extended or amended, as determined in good faith by the Management Board and restrictions contained in such agreements referred evidenced by a Board Resolution; and
(B) with respect only to in clause (c) of this Section 4.11, to:
(i) any encumbrance or restriction relating to Debt that is permitted to be Incurred pursuant to the provisions described in Section 4.09 or Section 4.16 and secured pursuant to the provisions of Section 4.15; 39
(ii) of this paragraph on the Issue Date any encumbrance or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, restriction in connection with an acquisition of Capital Stock Property, so long as such encumbrance or otherwiserestriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition;
(iii) by the Company customary provisions of leases and customary provisions in other agreements that restrict assignment of such agreements or a Restricted Subsidiary, whichever is applicablerights thereunder;
(iv) (a) purchase money obligations for property acquired customary restrictions contained in asset sale agreements limiting the ordinary course transfer of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions such Property pending the closing of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedsuch sale;
(v) any encumbrance or restriction with respect to existing by reason of a Restricted Subsidiary (customary merger or acquisition agreement for the purchase or acquisition of the stock or assets of the Guarantor or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether Subsidiaries by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionanother Person;
(vi) customary non-assignment provisions restrictions contained in operating leases for real property and other agreements entered into by restricting only the Company transfer of such real property or any Restricted Subsidiary effective only upon the occurrence and during the continuance of a default in the ordinary course payment of businessrent;
(vii) encumbrances any encumbrance or restrictions restriction arising or existing by reason as the result of applicable law or any applicable rule, regulation or order;regulation; or
(viii) customary encumbrances any restriction or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets encumbrance that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions may be imposed by any amendmentsgovernmental licenses, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements franchises or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingpermits.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company (a) Holdings will not, and will not permit any Restricted Subsidiary to, 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:
(1i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Holdings 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);
(2ii) make any loans or advances to the Company Holdings or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Holdings or any Restricted Subsidiary to other Indebtedness Incurred by the Company Holdings or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Company Holdings or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to or by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Indenture in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person on or before the date on which such Restricted Subsidiary Person was acquired (whether by merger, consolidation, acquisition of Capital Stock Holdings or otherwise) by the Company or a another Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Person was acquired by Holdings or a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company Holdings or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of Holdings and the Restricted Subsidiaries to realize the value of, property or assets of Holdings or any Restricted Subsidiary in any manner material to Holdings or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of Holdings or any other Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuers determine that any such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Company);
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph (b) or this clause (6) or contained in any amendment, restatement, modification, renewal, increasesupplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (i) or (ii12) of this paragraph (b) or this clause (iii6); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, agreement taken as a whole, whole are no less favorable in any material respect to the Holders holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (i) or (ii12) of this paragraph (b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv7) in the case of Section 4.11(a)(iii), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or other contract;
(b) arising from Permitted Liens securing Indebtedness of Holdings or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of Holdings or any Restricted Subsidiary;
(d) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(e) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(f) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 4.11(a)(iii) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:,
(iA) any encumbrance or restriction pursuant to (i) applicable law, rule, regulation or order or (ii) an agreement agreement, including without limitation the Credit Agreement, in effect at or entered into on the Issue Effective Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a any Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iA) or (iiB) of this paragraph covenant or this clause (iiiC) or contained in any amendment to an agreement referred to in clause (A) or (B) of this covenant or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, Refinancing agreement or amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, are not materially less favorable (as determined in good faith by the Company) to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to predecessor agreements;
(D) in the case of clause (3), any encumbrance or restriction
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license or similar contract;
(ii) contained in security agreements or mortgages securing Indebtedness of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary to the extent such encumbrance or was acquired (whether by merger, consolidation, acquisition restriction restricts the transfer of Capital Stock the property subject to such security agreements or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;mortgages; or
(iviii) (a) purchase money obligations for property acquired arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(bE) Capitalized Lease Obligations permitted under this Indentureany encumbrance or restriction on cash or other deposits or net worth imposed by customers or lessors or required by insurance, (c) industrial revenue bonds surety or (d) operating leasesbonding companies, in each case, that impose encumbrances or restrictions case under contracts entered into in the ordinary course of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedbusiness;
(vF) any restriction with respect to a Restricted Subsidiary (Subsidiary, any encumbrance or any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) a substantial portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viG) customary nonprovisions limiting the disposition or distribution of assets or property or assignment in joint venture agreements, asset sale agreements, leases, intellectual property licenses, sale-assignment provisions in leases leaseback agreements, stock sale agreements and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiH) encumbrances any encumbrance or restrictions arising or restriction existing under, by reason of applicable law or with respect to Indebtedness Incurred by any applicable ruleRestricted Subsidiary permitted to be Incurred under Section 4.09, regulation provided that the Company determines in good faith at the time such Indebtedness is Incurred that such encumbrance or orderrestriction would not impair the ability of the Company to make payments of interest and principal on the Notes when due;
(viiiI) customary encumbrances any encumbrance or restrictions existing under restriction in any agreement or by reason instrument of provisions in joint venture, partnership (limited a Receivables Subsidiary governing or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively Transaction; provided that such restrictions apply only to such Receivables Subsidiary or the assets Receivables that are the subject of the to such Qualified Receivables Transaction;
(xiiJ) in the case existing under, by reason of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing or with respect to Indebtedness Incurred pursuant by Foreign Subsidiaries permitted to the definition of “Permitted Indebtedness”be Incurred under Section 4.09;
(xiiiK) in the case existing by reason of any Restricted Subsidiary contractual obligation that is reasonably determined by the Company not a Subsidiary Guarantor, restrictions under to materially adversely affect the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness ability of the Company to perform its obligations under this Indenture, the Notes, or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such SubsidiaryExchange Notes; andor
(xivL) any encumbrances existing by reason of this Indenture, the Notes, the Exchange Notes or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingNote Guarantees.
Appears in 1 contract
Samples: Indenture (Aecom Technology Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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 (1a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the 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 Capital Stock shall be deemed to not be deemed a restriction on the ability to pay dividends or make other distributions on Capital Stock);
, (2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3c) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Company, except:
(1) or with respect to clauses (2a), (b) aboveand (c). The preceding provisions will not prohibit:,
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, including the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transactionCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.in
Appears in 1 contract
Samples: Indenture (Us Concrete Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder Collateral Documents, the Securities, the Exchange Securities, the Subsidiary Guarantees, the Revolving Credit Facility (and related documentation) and the Guarantees thereof, the Xxxxxxx Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as Facilities in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of Section 3.4(3), any encumbrance, lien or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements otherwise permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business, business and (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.4(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vivii) any customary non-assignment provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(viii) deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viiix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;; and
(x) encumbrances or restrictions relating to any Lien permitted under this Indenture;
(xi) any contained in indentures or debt instruments or other Indebtedness debt arrangements Incurred or contractual requirements Incurred Preferred Stock issued by Subsidiary Guarantors in accordance with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries Section 3.2 that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior applicable to such amendment the Company in either this Indenture or refinancingthe Revolving Credit Facility on the Issue Date (which result in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Borrower shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1a) pay dividends or make any other distributions on its Capital Stock to the Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (it being understood Borrower; provided that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on of the ability to make distributions on of Capital Stock);
(2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood Borrower; provided that the subordination of loans or advances made to the Company Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Company Borrower or any Restricted Subsidiary shall not be deemed a restriction on of the ability to make loans or advances); or
(3c) transfer any of its property Property or assets to the Company or any Restricted Subsidiary Borrower, except with respect to clauses (it being understood that such transfers shall not include any type of transfer described in clause a), (1b) or and (2c) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, Effective Date including, without limitation, this Indenturefor the avoidance of doubt, the Notes issued thereunder First Lien Credit Agreement and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateUnsecured Notes;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary Subsidiary, or otherwise binding on such Restricted Subsidiary, on or before prior to the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) was so designated by the Company Borrower or a any Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, and other than any encumbrance or restriction entered into in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transactionBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph or this clause (iii)above; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement Refinancing agreement or refinancing amendment are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes no more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v4) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property Property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) of substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property Property or assets that are subject to such restrictionrestrictions) pending the closing of such sale or disposition;
(vi5) customary encumbrances and restrictions contained in agreements of the type described in the definition of the term “Permitted Business Investments”;
(6) any encumbrance or restriction pursuant to an agreement relating to any Capital Lease Obligations or purchase money Indebtedness, in each case not Incurred in violation of this Agreement; provided, that with respect to purchase money Indebtedness or Capital Lease Obligations, such restrictions relate only to the Property financed with such Indebtedness;
(7) any encumbrance or restriction pursuant to provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any Capital Stock of a Person other than on a pro rata basis;
(8) any encumbrance or restriction existing pursuant to applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(9) any encumbrance or restriction pursuant to supermajority voting requirements under corporate charters, bylaws, stockholders agreements and similar documents and agreements; and
(10) any encumbrance or restriction pursuant to an instrument or agreement governing Indebtedness permitted by the terms of this Agreement to be Incurred by a Restricted Subsidiary to fund, in whole or in part, the acquisition of any Property or assets; provided such Indebtedness is repaid or otherwise refinanced in full with Refinancing Indebtedness on or prior to the date 12 months after the date such Indebtedness was initially Incurred; and and except, with respect to clause (c) only:
(1) any encumbrance or restriction consisting of customary non-assignment provisions (including provisions forbidding subletting) in leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements to the extent such provisions restrict the transfer of the lease or the Property leased thereunder;
(2) any encumbrance or restriction contained in Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the Property (including Capital Stock) subject to such Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments;
(3) Permitted Liens or Liens securing Indebtedness otherwise permitted to be Incurred pursuant to Section 6.07 that limit the right of the Borrower or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(4) customary restrictions contained in asset sale agreements limiting the transfer of such assets pending the closing of such sale;
(5) customary restrictions on the subletting, assignment or transfer of any Property or asset that is subject to a lease, license, sub-license or similar contract, or the assignment or transfer of any such lease, license, sub-license or other contract;
(6) encumbrances and other agreements restrictions contained in contracts entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions not relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness Indebtedness, and that do not, individually or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to in the assets that are aggregate, detract from the subject value of, or from the ability of the Qualified Receivables Transaction;
(xii) in Borrower and the case of Restricted Subsidiaries that are not Subsidiary Guarantorsto realize the value of, restrictions imposed under instruments governing Indebtedness Incurred pursuant to Property or assets of the definition of “Permitted Indebtedness”;
(xiii) in the case of Borrower or any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under in any manner material to the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created Borrower or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Restricted Subsidiary; and
(xiv7) any encumbrances encumbrance or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred restriction pursuant to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, provisions with respect to such encumbrances the disposition or distribution of assets or Property in operating agreements, sale-leaseback agreements, joint venture agreements, development agreements, area of mutual interest agreements and restrictions than those prior to such amendment or refinancingother agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Borrower shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1a) pay dividends or make any other distributions on its Capital Stock to the Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary (it being understood Borrower; provided 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 of the ability to make distributions on of Capital Stock);
(2b) make any loans or advances to the Company or any Restricted Subsidiary (it being understood Borrower; provided that the subordination of loans or advances made to the Company Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Company Borrower or any Restricted Subsidiary shall not be deemed a restriction on of the ability to make loans or advances); or
(3c) transfer any of its property Property or assets to the Company or any Restricted Subsidiary Borrower, except with respect to clauses (it being understood that such transfers shall not include any type of transfer described in clause a), (1b) or and (2c) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, Effective Date including, without limitation, this Indenturefor the avoidance of doubt, the First Lien RBL Credit Agreement, Senior Secured Notes issued thereunder Documents, the Junior Lien Credit Agreement and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateUnsecured Notes;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 otherwise binding on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences121 EXCO Resources, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.Inc.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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 Stock, or any restrictions related thereto, shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type of transfer described in clause (1b) or (2) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofSecurities, the Existing Notes and Securities Guarantees, the Exchange Securities, the Securities Guarantees thereof and in respect of the related indentures Exchange Securities and the Senior Secured Credit Facilities, in each case, as Agreement (or related documents) in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionacquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, a refunding, replacement or refinancing of Capital Stock or Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 3.4(b) or this clause (iii3) or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 3.4(b) or this clause (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, in the good faith judgment of the Company’s Board of Directors or Senior Management, not materially less favorablemore restrictive, taken as a whole, to the Holders of the Notes Securities (as determined in good faith by the Board of Directors of the Company) than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i1) or (ii2) of this paragraph Section 3.4(b) on the Issue Closing Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicable;
(iv4) (a) purchase money obligations for property acquired in the ordinary course case of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 3.4(a), any encumbrance or restriction:
(a) that restricts in a customary manner the first paragraph subletting, assignment or transfer of this Section 4.14 on any property or asset that is subject to a lease, license or similar contract, or the property so acquired assignment or leasedtransfer of any such lease, license or other contract;
(vb) any restriction with respect to 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 any of its property or assets) imposed pursuant to an agreement entered into for restrictions restrict the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) transfer of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale mortgages, pledges or disposition;other security agreements; or
(vic) pursuant to customary non-assignment provisions restricting dispositions of real property interests set forth in leases and other any reciprocal easement agreements entered into by of the Company or any Restricted Subsidiary in the ordinary course of businessSubsidiary;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted 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:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). .
(b) The preceding provisions will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions pursuant to an agreement the Existing Notes and related documentation and other agreements or instruments in effect at or entered into on the Issue Date, including, without limitation, ;
(2) this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateNote Guarantees;
(ii3) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation of the transaction) and outstanding on such date; provided that any such thereof), which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Company or any other Restricted Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquired and property (including after-acquired by such Restricted Subsidiary after its date of acquisitionproperty);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing of an agreement referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 4.07(b) or this clause (iii4); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreementamendments, amendmentrestatements, restatementmodifications, modificationrenewals, renewalsupplements, increaserefundings, refunding, replacement replacements or refinancing are notrefinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorable, taken as a whole, to the Holders of the Notes no more restrictive than the encumbrances and restrictions contained in such the agreements referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 4.07(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock merged or otherwise) by the Company or amalgamated into a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of clause (a3) of Section 4.07(a), Liens permitted to be Incurred under Section 4.11 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(6) purchase money obligations for property acquired in the ordinary course of business, (b) business and Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 4.07(a) on the property so acquired or leasedacquired;
(v7) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock all or otherwise) a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary non-assignment provisions in leases joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(10) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv12) any encumbrances (A) other Indebtedness Incurred or restrictions imposed Preferred Stock issued by any amendmentsa Subsidiary Guarantor in accordance with Section 4.08, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings arethat, in the good faith judgment of the Company’s Board of Directors or Senior Managementof the Company, no are not more materially restrictive, taken as a whole, than those restrictions applicable to the Company in this Indenture on the Issue Date (which results in encumbrances or restrictions at a Restricted Subsidiary level comparable to those applicable to the Company) or (B) other Indebtedness Incurred or Preferred Stock issued by a Non-Guarantor Restricted Subsidiary, in each case permitted to be Incurred subsequent to the Issue Date under Section 4.08; provided that with respect to clause (B), such encumbrances or restrictions will not materially affect the Company’s ability to make anticipated principal and restrictions than those prior to such amendment or refinancinginterest payments on the Notes (in the good faith judgment of the Board of Directors of the Company).
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Thompson Creek Metals CO Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, 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:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the 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 and any subordination of such Indebtedness or other obligations shall not be deemed a not to be an encumbrance or restriction on the ability to pay dividends or make any other distributions on Capital Stock);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a not to be an encumbrance or restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company or any Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) The provisions of transfer described in clause (1Section 3.7(a) or (2) above). The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement or instrument in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereofNotes, the Existing Notes and the Guarantees thereof and the related indentures Subsidiary Guarantees, and the Senior Secured Credit Facilities, in each case, as in effect on such dateAgreement (and related documentation);
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an any agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before instrument that is in existence at the date on which time such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or Person becomes a Restricted Subsidiary (other than Capital Stock or Indebtedness that was and not Incurred as consideration inin connection with, or 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 Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on of, such datePerson becoming a Restricted Subsidiary); provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii3) any encumbrance or restriction pursuant to any agreement or instrument governing any Acquired Indebtedness or other agreement or instrument of any Person or related to property, assets or Capital Stock of a Person acquired by or merged into or consolidated with the Company or any Restricted Subsidiary; provided, that such encumbrance or restriction (i) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (ii) shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in any of clauses (1), (2) or (3) of this Section 3.7(b) or this clause (4) or contained in any amendment, restatement, modification, renewal, increaserestructuring, supplement, extension, substitution, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) any of this paragraph or this clause (iii)such clauses; provided, however, that that, in the good faith reasonable determination of the Company, the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favorable in the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableany material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i1), (2) or (ii3) of this paragraph Section 3.7(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or merged into a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of Section 3.7(a)(3), any encumbrance or restriction:
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(ii) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(iii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) (ai) purchase money obligations for property acquired in the ordinary course of business, business and (bii) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3Section 3.7(a)(3) of the first paragraph of this Section 4.14 on the property so acquired or leasedacquired;
(v7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock Stock, property or assets of such Restricted Subsidiary (or the property or assets that are subject to such encumbrance or restriction) pending the closing of such sale or disposition;
(vi8) any customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment”;
(9) customary non-assignment deposit arrangements or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii10) in the case of Section 3.7(a)(3), any encumbrance or restriction that is a Lien otherwise permitted to be Incurred pursuant to Section 3.5;
(11) any encumbrance or restriction in respect of a Sale/Leaseback Transaction permitted under Section 3.6; and
(12) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.
Appears in 1 contract
Samples: Indenture (Cimarex Energy Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted 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:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the 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);
(2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances);
(3) grant Liens upon any of the assets of such Restricted Subsidiary that is a Subsidiary Guarantor to secure the Notes Obligations; or
(34) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will .
(b) Section 4.08(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) the Senior Credit Facility or any encumbrance other agreement or restriction pursuant to an agreement instrument in effect at or entered into on the Issue Effective Date, including, without limitation, ;
(2) this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateSubsidiary Guarantees;
(ii3) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or 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 Restricted Subsidiary or was Person acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance merged or restriction shall not extend to any assets consolidated with or property of into the Company or any other of its Restricted Subsidiary Subsidiaries in existence at the time of such acquisition, merger or consolidation (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the property or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and property its Subsidiaries, so acquired (including after-acquired property and property acquired by such Restricted Subsidiary after its date of acquisitionassets);
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, extension, refunding, replacement or refinancing of an agreement referred to in clause clauses (i1) or through (ii13) of this paragraph or this clause (iiiSection 4.08(b); provided, however, that the encumbrances and or restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, extension, refunding, replacement or refinancing are notis, in the good faith judgment of the Company’s Board of Directors or Senior Management, not materially less favorablemore restrictive, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such any of the agreements or instruments referred to in clause clauses (i1) or through (ii) 13), as applicable, of this paragraph Section 4.08(b) on the Issue Date or Effective Date, the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock merged or otherwise) by consolidated with or into the Company or a Restricted Subsidiary, or, with respect to clauses (5) through (13) of this Section 4.08(b), the date such original agreement was initially tested under such clause, whichever is applicable;
(iv5) in the case of clause (a4) of Section 4.08(a), Permitted Liens or Liens otherwise permitted to be incurred under Section 4.12 that limit the right of the debtor to dispose of property or assets subject to such Liens;
(6) purchase money obligations for property acquired in the ordinary course of businessobligations, (b) Capitalized mortgage financings, Capital Lease Obligations and similar obligations or agreements permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) or (4) of the first paragraph of this Section 4.14 on 4.08(a) with respect to the property so acquired or assets acquired, financed, designed, leased, constructed, repaired, maintained, installed or improved in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(v7) any restriction agreements for the sale, transfer or other disposition of property or assets, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition transfer or other disposition of Capital Stock all or otherwise) a portion of the Capital Stock Stock, property or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(vi8) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(9) customary non-assignment any provisions in leases joint venture agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) as determined in good faith by an Officer of the Company (as evidenced by an Officers’ Certificate), do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due;
(10) any provisions in leases, subleases, licenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due, as determined in good faith by an Officer of the ordinary course of businessCompany (as evidenced by an Officers’ Certificate);
(vii11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(viii12) customary encumbrances non-assignment provisions or restrictions existing under on subletting in any contract or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with the entering into of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case lease of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under entered into in the constitutive documents governing such Subsidiary: ordinary course of business; or
(A13) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created Credit Facilities or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of other debt arrangements incurred by the Company or another any Restricted Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions or Preferred Stock issued by any Restricted Subsidiary, in respect of any Capital Stock of such Subsidiary (taking into account the relative preferencesaccordance with Section 4.09, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no not materially more materially restrictive, when taken as a whole, with respect to such encumbrances and restrictions than those prior applicable in either this Indenture or the Senior Credit Facility on the Effective Date which, as determined in good faith by an Officer of the Company (as evidenced by an Officers’ Certificate), do not adversely affect the Company’s ability to such amendment make payments of principal or refinancinginterest payments on the Notes when due.
Appears in 1 contract
Samples: Indenture (Fortrea Holdings Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Parent Guarantor shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property or assets Property to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions will foregoing limitations shall not prohibitapply to restrictions:
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenturebut not limited to pursuant to the Credit Agreement and the related collateral documentation and the indentures governing any Existing ILG Notes not exchanged in the Exchange Offer, the Notes issued thereunder and the Guarantees thereof, the Existing New Marriott Notes and the Guarantees thereof and the related indentures and the Senior Credit FacilitiesConvertible Notes, including, in each case, as in effect on such date;any Guarantee thereof,
(iiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisition;Parent Guarantor,
(iiiC) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in clause clauses (iA), (B), (F), (G), (J) or (ii) of this paragraph or this clause (iii)C) in this second paragraph of Section 4.08; provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the CompanyIssuer’s Board of Directors or Senior Management, materially less favorablein a resolution of the Board of Directors delivered to the Trustee), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (A), (B), (F), (G) or (J) or this clause (C) in this second paragraph of Section 4.08, as applicable,
(D) resulting from the Incurrence of any Permitted Debt pursuant to one of the clauses of the second paragraph of Section 4.04; provided that the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Issuer’s Board of Directors in a resolution of the Notes Board of Directors delivered to the Trustee) than the encumbrances and restrictions of the same type contained in such agreements referred to in clause this Indenture, or
(iE) existing by reason of applicable law, rule, regulation or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is applicableorder;
(ivF) (a) purchase money obligations for property acquired in the ordinary course of business, (b) Capitalized Lease Obligations permitted under this Indenture, with respect to clause (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on 4.08 only, relating to Debt that is permitted to be Incurred and secured without also securing the property so acquired or leased;Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the Property securing that Debt,
(vG) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for encumbering Property at the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of time the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into Property was acquired by the Company Parent Guarantor or any Restricted Subsidiary Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition,
(H) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business;) that restrict assignment of the agreements or rights thereunder,
(viiI) encumbrances or which are customary restrictions arising or contained in asset sale agreements limiting the transfer of Property pending the closing of the sale,
(J) existing by reason of applicable law or any applicable rulethis Indenture, regulation or order;the Notes, the Exchange Notes and the Note Guarantees,
(viiiK) in respect of any Receivables Subsidiary to the extent set forth in the Accounts Receivable Facility Documents, or
(L) which are customary encumbrances provisions limiting the disposition or restrictions existing under distribution of assets or by reason of provisions property in joint ventureventure agreements, partnership (limited or general)asset sale agreements, limited liability company or sale-leaseback agreements, stock sale agreements and other similar agreements required in connection entered into with the entering into approval of such transaction;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing Issuer’s Board of Directors and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien otherwise permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively , which limitation is applicable only to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingagreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer and the Corporation will not, and will not permit any Restricted 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:
(1) (A) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of the Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or (B) pay any Indebtedness or other obligations owed to the Company 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);
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). .
(b) The preceding provisions of Section 4.8(a) will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder Notes, the Guarantees, the Senior Subordinated Exchangeable Debenture (and related documents, as may be amended, supplemented or modified from time to time and any renewal, increase, extension, refunding, restructuring, replacement or refinancing thereof in whole or in part), any Exchange Notes, any Guarantee of such Exchange Notes, the Collateral Documents, the Intercreditor Agreement and the Guarantees thereof, the Existing Notes ABL Facility (and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as documents) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person or assets pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary in effect on or before the date on which such Person became a Restricted Subsidiary or was acquired (whether by mergerby, consolidation, acquisition of Capital Stock merged into or otherwise) by consolidated with the Company Issuer or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company Issuer or in contemplation of the transaction) and outstanding on or such dateassets were acquired by the Issuer or any Restricted Subsidiary; provided provided, that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Company Issuer or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquired and property acquired by such Restricted Subsidiary after its date that, in the case of acquisitionIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this Section 4.8(b) or this clause (iii) or contained in any amendment, restatement, modification, renewal, increasesupplement, refunding, replacement or refinancing Refinancing of an agreement referred to in clause (i) or (ii) of this paragraph Section 4.8(b) or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing agreement are not, no less favourable (as determined in Good Faith by the good faith judgment of the Company’s Board of Directors or Senior Management, materially less favorableIssuer) in any material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause clauses (i) or (ii) of this paragraph Section 4.8(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock merged into or otherwise) by the Company or consolidated with a Restricted Subsidiary, whichever is applicable;
(iv) (a) purchase money obligations for property acquired in the ordinary course case of business, (b) Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leased;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale4.8(a), merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) customary encumbrances or restrictions existing under or by reason of provisions in joint venture, partnership (limited or general), limited liability company or similar agreements required in connection with Liens permitted to be Incurred under the entering into provisions of such transaction;
(ix) customary restrictions imposed on Section 4.12 that limit the transfer, licensing, sub-licensing and assignment right of intellectual property and the debtor to dispose of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing.Liens;
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Samples: Senior Secured Notes Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will Parent Guarantor shall not, and will shall not permit any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor 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 right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);,
(2b) make any loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(3c) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1a) or (2b) above). The preceding provisions will foregoing limitations shall not prohibitapply to restrictions:
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, including pursuant to the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such dateAgreement;
(iiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which such Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition in anticipation of Capital Stock or otherwise) by the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and property acquired by such Restricted Subsidiary after its date of acquisitionParent Guarantor;
(iiiC) that result from any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increasesupplement, refunding, extension or replacement or refinancing of an agreement referred to in clause clauses (iA), (B), (F), (G), (J) or (ii) of this paragraph or this clause (iiiC) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred thereunder); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary restriction contained in any such agreement, amendment, restatement, modification, renewal, increasesupplement, refundingextension, replacement or refinancing are not, Refinancing is not materially more restrictive (as determined in the good faith judgment of by the Company’s Board of Directors or Senior Management, materially less favorableParent Guarantor), taken as a whole, to than the Holders restrictions of the Notes than the encumbrances and restrictions same type contained in such the agreements or instruments referred to in clause clauses (iA), (B), (F), (G) or (iiJ) or this clause (C) in this second paragraph of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by mergerSection 4.08, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary, whichever is as applicable;
(ivD) (a) purchase money obligations for property acquired resulting from the Incurrence of any Permitted Debt as defined in the ordinary course of business, paragraph (b) Capitalized Lease Obligations permitted under this Indentureof Section 4.04; provided that if the obligor of such Debt is the Issuer or a Subsidiary Guarantor, the restriction is no less favorable to the Holders in any material respect (cas determined in good faith by the Parent Guarantor) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or than the restrictions of the nature described same type contained in clause (3) of the first paragraph of this Section 4.14 on the property so acquired or leasedIndenture;
(vE) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition (whether by sale, merger, consolidation, acquisition of Capital Stock or otherwise) of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) customary non-assignment provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order;
(viiiF) with respect to clause (c) set forth in the first paragraph of this Section 4.08 only, relating to Debt that is permitted to be Incurred and secured pursuant to Section 4.04 and Section 4.06 that limit the right of the debtor to dispose of the properties or assets securing that Debt;
(G) encumbering properties or assets at the time the properties and assets were acquired by the Parent Guarantor or any Restricted Subsidiary, so long as the restriction relates solely to the properties and assets so acquired and was not created in connection with or in anticipation of the acquisition;
(H) resulting from customary encumbrances provisions restricting subletting or assignment of leases or customary provisions in other agreements (including, without limitation, intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(I) which are customary restrictions contained in asset sale agreements limiting the transfer of property or assets pending the closing of the sale;
(J) existing under or by reason of provisions in joint venturethis Indenture, partnership (limited or general)the Notes, limited liability company or similar agreements required in connection with the entering into of such transactionNote Guarantees and the Security Documents;
(ix) customary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(x) restrictions relating to any Lien permitted under this Indenture;
(xiK) any other Indebtedness Debt or contractual requirements Incurred with respect to a Qualified Receivables Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Parent Guarantor’s Board of Directors and otherwise permitted under this Indenture, which limitation is applicable only to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries, existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary, (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Subsidiary (taking into account the relative preferences, if any, of the various classes or series of Capital Stock of such Subsidiary), (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party, and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any encumbrances or restrictions imposed by any amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors or Senior Management, no more materially restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancingagreements.
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