Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Issuer or any of its Restricted Subsidiaries; (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary; (3) make loans or advances to the Issuer or any other Restricted Subsidiary; or (4) transfer its property or assets to the Issuer or any other Restricted Subsidiary. (b) Section 4.13(a) shall not restrict any encumbrances or restrictions: (1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (2) existing under or by reason of applicable law; (3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (4) in the case of Section 4.15(a)(4): (i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or (iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole; (5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; (6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if: (i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and (iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or (7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien. (c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 3 contracts
Samples: Indenture (Omega Healthcare Investors Inc), Indenture (Omega Healthcare Investors Inc), Indenture (Omega Healthcare Investors Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing contractual encumbrances or restrictions in effect on the Closing Issue Date or the Distribution Date, if on substantially the terms described in the Offering Memorandum, including those arising under the Senior Credit Facilities, this Indenture, the Line of Credit Notes, the Guarantees and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedCollateral Documents;
(2) existing under or by reason purchase money obligations for property acquired in the ordinary course of applicable lawbusiness and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(3) existing with respect to applicable law or any Person applicable rule, regulation or the property order;
(4) any agreement or assets other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeSubsidiaries, so acquired or designated;
(5) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.such Subsidiary;
Appears in 2 contracts
Samples: Indenture (Arconic Inc.), Indenture (Arconic Rolled Products Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or, with respect to any other interest or any of participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawthis Indenture and the Notes;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) that restrict any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in a customary manner existence at the sublettingtime of such acquisition (but not created in contemplation thereof), assignment which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeso acquired;
(56) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary that impose restrictions on the assets to be sold;
(67) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(10) customary provisions contained in leases and other agreements entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i11) the any such encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in Foreign Subsidiary pursuant to an agreement governing Indebtedness, Disqualified Stock or preferred stock incurred by such Indebtedness or agreement,Foreign Subsidiary that was permitted by the terms of this Indenture to be incurred;
(ii12) the any such encumbrance or restriction is not materially more disadvantageous pursuant to the Holders of the Notes than is customary an agreement governing Indebtedness incurred pursuant to Section 1011(b)(1), which encumbrances or restrictions are, in comparable financings (as determined by the good faith judgment of the Company’s Board of Directors not materially more restrictive, taken as a whole, than customary provisions in comparable financings and that the management of the Company determines, at the time of such financing, will not materially impair the Company’s ability to make payments as required under the Notes;
(13) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (10) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(14) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the Issuer)Company, and
(iii) the Board of Directors of the Issuer, in its good faith, determines that are necessary or advisable to effect such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienReceivables Facility.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 2 contracts
Samples: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Senior Credit Facility and that are being extended, refinanced, renewed or replacedthe related documentation and related Hedging Obligations;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and the Guarantees;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(4) applicable law or assets any applicable rule, regulation or order;
(5) any agreement or other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person and its Subsidiaries, so acquired or the property or assets of such Person so acquireddesignated;
(46) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1011;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture and asset sale agreements and Sale and Lease-Back Transaction agreements;
(11) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i12) the encumbrance or restriction applies only restrictions created in the event of a payment default or a default connection with respect to a financial covenant contained any Receivables Facility that, in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment determination of the Board of Directors of the Issuer), andare necessary or advisable to effect such Receivables Facility;
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(713) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing or conditions contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the trading, netting, operating, construction, service supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of its the Issuer or such Restricted SubsidiariesSubsidiary or the assets or property of any other Restricted Subsidiary; and
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with the covenants set forth in this Section 1014: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Samples: Indenture (BWX Technologies, Inc.), Indenture (BWX Technologies, Inc.)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to to, or guarantee any Indebtedness or other obligations of, the Issuer Company or any other Restricted Subsidiary; or
, or (4c) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any , except for such encumbrances or restrictions:
restrictions existing under or by reason of (1i) existing on the Closing Date in this IndentureSenior Credit Facility, the Line of Credit and any Basic Document or any other agreement in effect of the Company or the Restricted Subsidiaries outstanding on the Closing Date Issue Date, in each case as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements refinancings thereof; provided, however, that any such amendment, restatement, renewal, replacement or refinancing is no more restrictive in the aggregate with respect to such encumbrances or restrictions than those contained in the Senior Credit Facility on the Issue Date; (ii) applicable law; (iii) any instrument governing Indebtedness or Equity Interests of an Acquired Person acquired by the Company or any Restricted Subsidiary as in effect at the time of such agreementsacquisition (except to the extent such Indebtedness was incurred by such Acquired Person in connection with, as a result of or in contemplation of such acquisition); provided, however, that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary, or the properties or assets of the Company or any Restricted Subsidiary, other than the Acquired Person; (iv) customary non- assignment provisions in leases entered into in the ordinary course of business and consistent with past practices; (v) Purchase Money Indebtedness for property acquired in the ordinary course of business that only imposes encumbrances and restrictions on the property so acquired; (vi) any agreement for the sale or disposition of the Equity Interests or assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (vi) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (vii) refinancing Indebtedness permitted under clause (h) of the second paragraph of Section 4.04; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
are no more restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing; (iviii) this Indenture or the Senior Subordinated Note Indenture; or (ix) any such customary encumbrance or restriction applies only existing under any other security agreement, instrument or document hereafter in effect; provided, however, that the event terms and conditions of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that any such encumbrance or restriction will are not materially affect more restrictive than those contained in the Issuer’s ability to make principal or interest payments Senior Credit Facility as in effect on the Notes; or
(7) restrictions on Issue Date. Anything contained herein to the transfer of assets subject contrary notwithstanding, the Company and its Subsidiaries shall in no event be prohibited or restrained from granting, and causing to be effective, any Lien permitted under this Indenture imposed by lien or security interest securing the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets obligations of the Issuer or any of its Company and the Restricted Subsidiaries that secure Indebtedness of under the Issuer or any of its Restricted SubsidiariesSenior Credit Facility.
Appears in 2 contracts
Samples: Indenture (Tci Satellite Entertainment Inc), Indenture (Tci Satellite Entertainment Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1a) (x) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of its Restricted Subsidiaries;
Subsidiaries that is a Guarantor on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2y) pay any Indebtedness owed to the Issuer or any other of its Restricted SubsidiarySubsidiaries that is a Guarantor;
(3b) make loans or advances to the Issuer or any other of its Restricted SubsidiarySubsidiaries that is a Guarantor; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other of its Restricted Subsidiary.
Subsidiaries that is a Guarantor, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then Senior Credit Facilities and, in effect each case, related documentation and that are being extended, refinanced, renewed or replacedrelated Hedging Obligations;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and the Note Guarantees;
(3) existing with respect to any Person or Purchase Money Obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(4) applicable law or assets any applicable rule, regulation or order;
(5) any agreement or other instrument of such a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged, consolidated or amalgamated with or into the Issuer or any Restricted Subsidiary, existing or any other transaction entered into in connection with any such acquisition, merger, consolidation or amalgamation, in existence at the time of such acquisition and or at the time it merges, consolidates or amalgamates with or into the Issuer or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in each case, not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person or the property or assets of such Person and its Subsidiaries, so acquired;
(46) in contracts, including sale-leaseback agreements, for the case sale or disposition of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness permitted to be incurred pursuant to Sections 10.11 and 10.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash, Cash Equivalents or other deposits under contracts or customary net worth provisions contained in real property leases, in each case, entered into in the terms ordinary course of business or consistent with past practice and restrictions on cash, Cash Equivalents or other deposits permitted under Section 10.12 or arising in connection with any Indebtedness Permitted Liens;
(9) other Indebtedness, Disqualified Stock or any agreement Preferred Stock of Foreign Subsidiaries or Restricted Subsidiaries that are not Guarantors that is permitted to be incurred or issued subsequent to the Issue Date pursuant to which such Indebtedness was issued if:Section 10.11;
(i10) the encumbrance customary provisions in joint venture agreements or restriction applies only in the event of a payment default arrangements and other similar agreements or a default with respect arrangements relating solely to a financial covenant such joint venture;
(11) restrictions or conditions contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer)any trading, and
(iii) the Board of Directors of the Issuernetting, in its good faithoperating, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the construction, service, supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(12) any encumbrance or restriction with respect to a Subsidiary which was previously an Unrestricted Subsidiary which encumbrance or restriction exists pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became or is redesignated as a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming or being redesignated as a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property of such Subsidiary and its Subsidiaries;
(13) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 10.11; provided that, (A) in the good faith judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive taken as a whole than those contained in the Senior Credit Facilities or the Notes as in effect on the Issue Date or generally represent market terms at the time of incurrence or issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries;
(14) restrictions contained in any documentation relating to any Permitted Receivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable to effect such Permitted Receivables Financing;
(15) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment or other transfer thereof (or the assets subject thereto), including with respect to intellectual property; and
(16) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) of this Section 10.14 imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with this Section 10.14, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans and advances made to the Issuer or a Restricted Subsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Samples: Indenture (Ww International, Inc.), Indenture (Weight Watchers International Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or, with respect to any other interest or any of participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawthis Indenture and the Notes;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) that restrict any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in a customary manner existence at the sublettingtime of such acquisition (but not created in contemplation thereof), assignment which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeso acquired;
(56) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary that impose restrictions on the assets to be sold;
(67) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(10) customary provisions contained in leases and other agreements entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i11) the any such encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in Foreign Subsidiary pursuant to an agreement governing Indebtedness, Disqualified Stock or preferred stock incurred by such Indebtedness or agreement,Foreign Subsidiary that was permitted by the terms of this Indenture to be incurred;
(ii12) the any such encumbrance or restriction is not materially more disadvantageous pursuant to the Holders of the Notes than is customary an agreement governing Indebtedness incurred pursuant to Section 1011(b)(1), which encumbrances or restrictions are, in comparable financings (as determined by the good faith judgment of the Company not materially more restrictive, taken as a whole, than customary provisions in comparable financings and that the management of the Company determines, at the time of such financing, will not materially impair the Company’s ability to make payments as required under the Notes;
(13) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (10) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(14) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the Issuer)Company, and
(iii) the Board of Directors of the Issuer, in its good faith, determines that are necessary or advisable to effect such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienReceivables Facility.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Aircastle LTD)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not the Issuer or Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer or any other Restricted Subsidiary; or;
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Senior Credit Facilities and that are being extended, refinanced, renewed or replacedthe related documentation and related Hedging Obligations;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and the Guarantees;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(4) applicable law or assets any applicable rule, regulation or order;
(5) any agreement or other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person and its Subsidiaries, so acquired or the property or assets of such Person so acquireddesignated;
(46) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1011;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
(11) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i12) the encumbrance or restriction applies only restrictions created in the event of a payment default or a default connection with respect to a financial covenant contained any Receivables Facility that, in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment determination of the Board of Directors of the Issuer), are necessary or advisable to effect such Receivables Facility; and
(iii13) any encumbrances or restrictions of the Board type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of Directors the contracts, instruments or obligations referred to in clauses (1) through (12) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive in its good faith, determines that any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with the covenants set forth in this Section 1014: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments on advances made to the Notes; or
(7) restrictions on Issuer or a Restricted Subsidiary of the transfer of assets subject Issuer to any Lien permitted under this Indenture imposed other Indebtedness incurred by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any such Restricted Subsidiary from restricting shall not be deemed a restriction on the sale ability to make loans or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesadvances.
Appears in 1 contract
Samples: Indenture (Engility Holdings, Inc.)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Issuer or any in respect of its Restricted SubsidiariesCapital Stock;
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer Company or any other Restricted SubsidiarySubsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(43) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on Subsidiary of the Closing Date Company, except in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of each case for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of of
(a) applicable law;
(3b) existing with respect to this Indenture;
(c) customary non-assignment provisions of any Person or the property or assets of such Person acquired by the Issuer contract or any lease governing a leasehold interest of any Restricted Subsidiary, existing at Subsidiary of the time of such acquisition and not Incurred in contemplation thereofCompany;
(d) any instrument governing Acquired Indebtedness, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property properties or assets of such the Person so acquired;
(4e) agreements existing on the Issue Date to the extent and in the case of Section 4.15(a)(4):
(i) that restrict manner such agreements are in a customary manner effect on the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeIssue Date;
(5f) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted SubsidiaryCredit Agreement;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7g) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.;
(ch) Nothing restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) 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;
(j) customary provisions in joint venture agreements, partnership agreements, limited liability company, organizational and governance documents or other similar agreements (in each case relating solely to the respective joint venture, partnership, limited liability company or similar entity or the equity interests therein) entered into in the ordinary course of business;
(k) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e) and (g) above; provided, however, that the provisions relating to such encumbrance or restriction contained in this Section 4.13 shall prevent any such Indebtedness are not materially less favorable on the Issuer whole to the Company as determined by the Board of Directors of the Company in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e) and (g);
(l) any other agreement governing Indebtedness entered into after the Issue Date that contains encumbrances and restrictions (x) that are not materially more restrictive than those in effect on the Issue Date with respect to that Restricted Subsidiary from restricting pursuant to agreements in effect on the sale Issue Date, (y) with respect to any Indebtedness incurred pursuant to clauses (14) and (15) of the definition of Permitted Indebtedness and the Consolidated Fixed Charge Coverage Ratio Provision of Section 4.08, that are not materially more restrictive than those imposed pursuant to the Credit Agreement as in effect on the Issue Date (which may result in encumbrances upon a Restricted Subsidiary so long as such encumbrances or restrictions are not materially more restrictive taken as a whole than the comparable encumbrances or restrictions that are applicable to the Company) or (z) that are not expected to make the Company unable to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company;
(m) Purchase Money Indebtedness or Capitalized Lease Obligations incurred in compliance with Section 4.08; and
(n) restrictions on cash or other disposition deposits or net worth imposed by suppliers, customers or landlords under contracts entered into in the ordinary course of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesbusiness.
Appears in 1 contract
Samples: Indenture (Exide Technologies)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to, or guarantee any Indebtedness or other obligations of, the Company or any other Restricted Subsidiary or (c) transfer any of its properties or assets to the Issuer Company or any other Restricted Subsidiary, except for such encumbrances or restrictions existing under or by reason of (i) the Bank Credit Facility; or
provided, however, that in no event shall Comcast Cellular (4so long as it is a Subsidiary of the Company) transfer its property be subject to any encumbrance or assets restriction with respect to actions taken by it, (ii) any agreement of the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing Subsidiary outstanding on the Closing Date in this IndentureIssue Date, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements refinancings thereof (each, a "refinancing"); provided, however, that (x) no such refinancing is more restrictive in the aggregate with respect to such encumbrances or restrictions than those contained in such agreement on the Issue Date and (y) in no event shall any such refinancing cause Comcast Cellular (so long as it is a Subsidiary of the Company) to be subject to any such encumbrance or restriction with respect to actions taken by it; (iii) applicable law; (iv) any agreement of an Acquired Person acquired by the Company or any Restricted Subsidiary as in effect at the time of such agreementsacquisition (except to the extent such agreement was created by such Acquired Person in connection with, as a result of or in contemplation of such acquisition) and any refinancing thereof; provided, however, that no such refinancing is more restrictive in the aggregate with respect to such encumbrances or restrictions than those contained in such agreement at the time of such acquisition; and provided, further, that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary, or the properties or assets of the Company or any Restricted Subsidiary, other than the Acquired Person; (v) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices; (vi) Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes encumbrances and restrictions only on the property so acquired; (vii) any agreement for the sale or disposition of the Equity Interests or assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (vii) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (viii) refinancing Indebtedness permitted under clause (vii) of Section 4.04(b); provided, however, that the encumbrances and restrictions contained in any the agreements governing such extensions, refinancings, renewals or replacements Indebtedness are no less favorable more restrictive in any material respect to the Holders aggregate than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) contained in the case of Section 4.15(a)(4):
agreements governing the Indebtedness being refinanced immediately prior to such refinancing; (i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5ix) with respect to a Restricted Securitization Subsidiary, an agreement relating to Indebtedness of a Securitization Subsidiary and imposed which is permitted under Section 4.04 or pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect relating to a financial Permitted Receivables Financing by a Securitization Subsidiary; or (x) this Indenture. The Company's obligations to comply with this covenant contained in such Indebtedness or agreement,
(ii) will terminate if and when the encumbrance or restriction is not materially more disadvantageous Securities are rated Investment Grade by both Xxxxx'x and S&P and the Company delivers an Officers' Certificate to the Holders of Trustee certifying as to the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Liensame.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to to, or guarantee any Indebtedness or other obligations of, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; or
, or (4c) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any , except for such encumbrances or restrictions:
restrictions existing under or by reason of (1i) existing on the Closing Date in this IndentureAmended Credit Facility, the Line of Credit and or any other agreement in effect of the Company or the Restricted Subsidiaries outstanding on the Closing Date Issue Date, in each case as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; provided, however, that the encumbrances and restrictions in any such extensionsamendment, refinancingsrestatement, renewals renewal, replacement or replacements are refinancing is no less favorable more restrictive in any material the aggregate with respect to the Holders than those such encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) those contained in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the sublettingagreement being amended, assignment restated, reviewed, replaced or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
refinanced; (ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
applicable law; (iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any instrument governing Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event Equity Interests of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.an
Appears in 1 contract
Samples: Indenture (Polymer Group Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Guarantor to:
(1a) (x) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of its Restricted Subsidiaries;
Subsidiaries that is a Guarantor on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2y) pay any Indebtedness owed to the Issuer or any other of its Restricted SubsidiarySubsidiaries that is a Guarantor;
(3b) make loans or advances to the Issuer or any other of its Restricted SubsidiarySubsidiaries that is a Guarantor; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other of its Restricted Subsidiary.
Subsidiaries that is a Guarantor, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect including pursuant to the Holders than those encumbrances or restrictions that are then in effect Senior Credit Facilities and that are being extended, refinanced, renewed or replacedthe related documentation and Hedging Obligations;
(2) existing under or by reason of applicable lawthis Indenture, the Notes, the Guarantees and the Security Documents;
(3) existing with respect to any Person or Purchase Money Obligations and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) of this Section 10.14 on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the sublettingapplicable law or any applicable rule, assignment regulation or transfer order or any requirement of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, oror any of their businesses;
(iii5) arising any agreement or agreed to in the ordinary course other instrument of businessa Person, not or relating to any IndebtednessIndebtedness or Capital Stock of a Person, and that do notwhich Person is acquired by or merged, individually consolidated or in the aggregate, detract from the value of property amalgamated with or assets of into the Issuer or any Restricted Subsidiary (or where such Person is an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary in accordance with this Indenture), or any manner material to other transaction entered into in connection with any such acquisition, merger, consolidation, amalgamation or redesignation, in existence at the time of such acquisition or at the time it merges, consolidates or amalgamates with or into the Issuer or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person or at the time it is redesignated (but, in each case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Restricted Subsidiaries taken as a wholeSubsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or redesignated;
(56) contracts, including sale-leaseback agreements, for the sale or disposition of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness and Liens otherwise permitted to be incurred pursuant to Sections 10.11 and 10.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or other counterparties under contracts entered into in the ordinary course of business or consistent with past practice or restrictions on cash or other deposits permitted under Section 10.12 or arising in connection with any Permitted Liens;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors that is permitted to be incurred or issued subsequent to the Issue Date pursuant to Section 10.11;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating to such joint venture or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries;
(11) customary provisions contained in the terms of any Indebtedness leases, subleases, licenses, sublicenses or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default similar agreements, including with respect to a financial covenant intellectual property and other agreements;
(12) restrictions or conditions contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer)any trading, and
(iii) the Board of Directors of the Issuernetting, in its good faithoperating, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the construction, service, supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(13) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 10.11; provided that, (A) in the good faith judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due, (B) 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 or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive taken as a whole than those contained in the Senior Credit Facilities or the Notes as in effect on the Issue Date or generally represent market terms at the time of incurrence or issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries;
(14) restrictions contained in any documentation relating to any Permitted Receivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable to effect such Permitted Receivables Financing; and
(15) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) of this Section 10.14 imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 10.14, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans and advances made to the Issuer or a Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to, or guaranty any Indebtedness or other obligations of, the Company or any other Restricted Subsidiary or (c) transfer any of its properties or assets to the Issuer Company or any other Restricted Subsidiary; or
(4) transfer its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any , except for such encumbrances or restrictions:
restrictions existing under or by reason of (1i) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date Facility as in effect on the Closing Date, Issue Date and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; provided, however, that the encumbrances and restrictions in any such extensionsamendment, refinancingsrestatement, renewals renewal, replacement or replacements are no less favorable in any material refinancing contains terms and conditions with respect to the Holders than those such encumbrances or restrictions that are then in effect and that are being extendedcustomary at the time for similar credit facilities, refinancedas determined by the Board of Directors of the Company; (ii) applicable law or regulations, renewed including regarding restrictions on the transfer of assets required or replaced;
imposed by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their respective businesses; (2iii) existing under any instrument governing Indebtedness or by reason Equity Interests of applicable law;
(3) existing with respect to any Person or the property or assets of such an Acquired Person acquired by the Issuer Company or any Restricted Subsidiary, existing Subsidiary as in effect at the time of such acquisition and not (except to the extent any such Indebtedness or Equity Interests were Incurred by such Acquired Person in connection with, as a result of or in contemplation thereof, which of such acquisition); provided that such encumbrances or and restrictions are not applicable to any Person Restricted Subsidiary, or the property properties or assets of any Person Restricted Subsidiary, other than such Person or the property or assets of such Person so acquired;Acquired Person; (iv)
(4A) in the case of Section 4.15(a)(4):
(i) non-assignment provisions that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract license or similar property contract, or asset,
(ii) existing by virtue the assignment or transfer of any transfer oflease, agreement to transferlicense or other contract, option (B) customary provisions restricting dispositions of real property interests set forth in any easement or right with respect to, or Lien on, any property or assets similar agreements of the Issuer Company or any Restricted Subsidiary not otherwise prohibited or (C) restrictions on cash or other deposits or net worth imposed by this Indenture, or
(iii) arising or agreed to customers under agreements entered into in the ordinary course of business, not relating to ; (v) Purchase Money Indebtedness or Capital Lease Obligations permitted under Section 4.04 and Section 4.18 that only imposes encumbrances and restrictions on the property so acquired; (vi) any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all the Equity Interests or substantially all assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (vi) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (vii) Permitted Refinancing Indebtedness permitted under clause (v) of the Capital Stock of, or property second paragraph of Section 4.04; provided that such encumbrances and assets of, such Restricted Subsidiary;
(6) restrictions contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is are not materially more disadvantageous restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to the Holders of the Notes than is customary in comparable financings (such refinancing, as determined by the good faith judgment of the Board of Directors of the Issuer)Company; (viii) this Indenture or contained in any other indenture governing debt securities that are not materially more restrictive than those contained in this Indenture, and
(iii) as determined by the Board of Directors of the IssuerCompany; (ix) customary restrictions in any instrument governing Indebtedness of a Foreign Subsidiary which Indebtedness was incurred and outstanding (without taking into account any reclassification of Indebtedness) under clause (iv) of the second paragraph of Section 4.04; (x) any agreement or instrument existing on the Issue Date; (xi) any agreement or instrument relating to Indebtedness of an Accounts Receivables Subsidiary or the sale or financing of accounts receivables or interests therein by an Accounts Receivables Subsidiary; or (xii) any agreement or instrument governing or relating to Indebtedness or Equity Interests of a Subsidiary Guarantor, in its good faith, determines provided that such encumbrance encumbrances or restriction will not materially affect restrictions are terminated or cease to exist upon the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder release of such Lien.
(c) Subsidiary Guarantor from its obligation under its Guaranty. Nothing contained in this Section 4.13 4.16 shall prevent the Issuer Company or any Restricted Subsidiary from (a) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.18 by itself or (b) restricting the sale or other disposition of property or assets of the Issuer Company or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer Company or any of its the Restricted SubsidiariesSubsidiaries by the customary terms of any Lien incurred in compliance with Section 4.18.
Appears in 1 contract
Samples: Indenture (Gentek Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to permit to exist or become effective effective, by operation of the charter of such Restricted Subsidiary or by reason of any consensual agreement, instrument, judgment, decree, rule, order, statute or governmental regulation, any encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on its Capital Stock; (b) make loans or advances or pay any Capital Stock of such Restricted Subsidiary owned by Indebtedness or other obligation owed to the Issuer Company or any of its Restricted Subsidiaries;
; or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any Company, except for such encumbrances or restrictions:
restrictions existing under or by reason of: (1) applicable law; (2) this Indenture; (3) customary nonassignment provisions of any lease governing a leasehold interest of the Company or any Restricted Subsidiary; (4) any instrument governing Acquired Indebtedness or Acquired Preferred Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; (5) agreements existing on the Closing Issue Date (including the Credit Agreement) as such agreements are from time to time in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementseffect; provided, however, that any amendments or modifications of such agreements that affect the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then of the types subject to this covenant shall not result in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.being less
Appears in 1 contract
Samples: Indenture (WTNH Broadcasting Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to to, or guarantee any Indebtedness or other obligations of, the Issuer Company or any other Restricted Subsidiary; or
, or (4c) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of except for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3i) existing the Senior Credit Facility, or any other agreement of the Company or the Restricted Subsidiaries outstanding on the Issue Date, in each case as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; PROVIDED, HOWEVER, that any such amendment, restatement, renewal, replacement or refinancing is no more restrictive in the aggregate with respect to such encumbrances or restrictions than those contained in the Senior Credit Facility on the Issue Date; (ii) applicable law; (iii) any Person instrument governing Indebtedness or the property or assets Equity Interests of such an Acquired Person acquired by the Issuer Company or any Restricted Subsidiary, existing Subsidiary as in effect at the time of such acquisition and not (except to the extent such Indebtedness was Incurred by such Acquired Person in connection with, as a result of or in contemplation thereofof such acquisition); PROVIDED, which HOWEVER, that such encumbrances or and restrictions are not applicable to the Company or any Person Restricted Subsidiary, or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property properties or assets of the Issuer Company or any Restricted Subsidiary not otherwise prohibited by this IndentureSubsidiary, or
other than the Acquired Person; (iiiiv) arising or agreed to customary non-assignment provisions in leases entered into in the ordinary course of business, not relating to any Indebtedness, business and that do not, individually or consistent with past practices; (v) Purchase Money Indebtedness for property acquired in the aggregate, detract from ordinary course of business that only imposes encumbrances and restrictions on the value of property or assets of the Issuer or so acquired; (vi) any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all the Equity Interests or substantially all assets of any Restricted Subsidiary; PROVIDED, HOWEVER, that such encumbrances and restrictions described in this clause (vi) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (vii) refinancing Indebtedness permitted under clause (h) of the Capital Stock ofsecond paragraph of Section 4.04; PROVIDED, or property HOWEVER, that such encumbrances and assets of, such Restricted Subsidiary;
(6) restrictions contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
are no more restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing; (iviii) the this Indenture; or (ix) any such customary encumbrance or restriction applies only existing under any other security agreement, instrument or document hereafter in effect; PROVIDED, HOWEVER, that the event terms and conditions of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that any such encumbrance or restriction will are not materially affect more restrictive than those contained in the Issuer’s ability to make principal or interest payments Senior Credit Facility as in effect on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienIssue Date.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Timber Tech Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or, with respect to any other interest or any of participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancingswithout limitation, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect ABL Facility and that are being extended, refinanced, renewed or replacedthe related documentation;
(2) existing under or by reason of applicable lawthis Indenture and the Notes;
(3) existing with respect purchase money obligations for property acquired in the ordinary course of business and lease obligations (including Capitalized Lease Obligations and any encumbrance or restriction pursuant to any Person or Customer Leasing Arrangement) that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) that restrict any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in a customary manner existence at the sublettingtime of such acquisition or at the time when it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, assignment in each case, not created in contemplation thereof), which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person so acquired and its Subsidiaries, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer Person and its Restricted Subsidiaries taken as a wholeSubsidiaries, so acquired;
(56) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary and imposed of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock ofor assets of such Subsidiary that impose restrictions on the assets to be sold;
(7) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) (A) other Indebtedness, Disqualified Stock or preferred stock of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1011 that impose restrictions solely on the Foreign Subsidiaries party thereto or (B) Permitted Non Guarantor Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 1011 that impose restrictions solely on Restricted Subsidiaries that are not Guarantors party thereto that will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes, in each case in the reasonable determination of the management of the Company;
(10) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(11) customary provisions contained in licenses or sub-licenses of intellectual property and software, including Poolstat Software, or other general intangibles in the ordinary course of business;
(12) any encumbrance or restriction with respect to a Foreign Subsidiary pursuant to an agreement governing Indebtedness incurred by such Foreign Subsidiary that was permitted by the terms of this Indenture to be incurred;
(13) any encumbrance or restriction pursuant to an agreement governing Indebtedness incurred pursuant to Section 1011(b)(1), which encumbrances or restrictions are, in the good faith determination of the management of the Company, no more restrictive, taken as a whole, than any such encumbrances or restrictions pursuant to the ABL Facility on the Issue Date;
(14) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance solely of the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets of, such or property of another Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(715) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.;
(c16) Nothing contained restrictions created in this Section 4.13 shall prevent connection with any Qualified Securitization Transaction; provided that, in the Issuer or any Restricted Subsidiary from restricting case of a Qualified Securitization Transaction occurring after the sale or other disposition of property or assets Closing Date, such restrictions in the good faith determination of the Issuer Company are necessary or advisable to effect such Qualified Securitization Transaction; and
(17) any of its Restricted Subsidiaries that secure Indebtedness encumbrance or restriction imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Issuer contracts, instruments or any obligations referred to in clauses (1) through (17) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith determination of its Restricted Subsidiariesthe management of the Company, (x) no more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing or (y) ordinary and customary with respect to facilities similar to the ABL Facility (under the relevant circumstances) and will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes.
Appears in 1 contract
Samples: Indenture (TRAC Intermodal LLC)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary that is not a Guarantor to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of its Restricted Subsidiaries;
Subsidiaries that is a Guarantor on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2) pay any Indebtedness owed to the Issuer or any other of its Restricted SubsidiarySubsidiaries that is a Guarantor;
(3b) make loans or advances to the Issuer or any other of its Restricted SubsidiarySubsidiaries that is a Guarantor; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other of its Restricted Subsidiary.
Subsidiaries that is a Guarantor, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawthis Indenture, the Notes, the Guarantees, the Existing Notes, the Existing Notes Indenture and related guarantees and the Security Documents;
(3) existing with respect to any Person or Purchase Money Obligations and Capitalized Lease Obligations that impose restrictions of the nature discussed in this Section 10.14(c) on the property so acquired;
(4) applicable law or assets any applicable rule, regulation or order or any requirement of such any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged, consolidated or amalgamated with or into the Issuer or any Restricted Subsidiary, existing or any other transaction entered into in connection with any such acquisition, merger, consolidation, amalgamation or redesignation, in existence at the time of such acquisition and or at the time it merges, consolidates or amalgamates with or into the Issuer or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person or at the time it is redesignated (but, in each case, not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person and its Subsidiaries, so acquired or the property or assets of such Person so acquiredredesignated;
(46) in contracts, including sale-leaseback agreements, for the case sale or disposition of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness and Liens otherwise permitted to be incurred pursuant to Section 10.11 and Section 10.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or other counterparties under contracts entered into in the ordinary course of business and consistent with past practice or restrictions on cash or other deposits permitted under Section 10.12 or arising in connection with any Permitted Liens;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors that is permitted to be incurred or issued subsequent to the Issue Date pursuant to Section 10.11;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating to such joint venture or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries;
(11) customary provisions contained in the terms of any Indebtedness leases, subleases, licenses, sublicenses or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default similar agreements, including with respect to a financial covenant intellectual property and other agreements;
(12) restrictions or conditions contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer)any trading, and
(iii) the Board of Directors of the Issuernetting, in its good faithoperating, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the construction, service, supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business and consistent with past practice; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(13) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 10.11; provided that, (A) in the good faith judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due, (B) 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, or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive taken as a whole than those contained in the Notes or the Existing Notes as in effect on the Issue Date or generally represent market terms at the time of incurrence or issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries; and
(14) any encumbrances or restrictions of the type referred to in Section 10.14(a), Section 10.14(b), and this Section 10.14(c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with this Section 10.14, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, and (2) the subordination of loans and advances made to the Issuer or a Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock (it being understood that the priority of any Preferred Stock issued by a Restricted Subsidiary in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid by such Restricted Subsidiary owned by the Issuer on its common stock will not be deemed an encumbrance or any of restriction on its Restricted Subsidiariesability to make distributions on its Capital Stock);
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer Company or any other Restricted SubsidiarySubsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company (it being understood that the subordination in right of payment of any obligation owed by a Restricted Subsidiary to any other obligation owed by such Restricted Subsidiary will not be deemed an encumbrance or restriction on its ability to pay such obligation); or
(43) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.Subsidiary of the Company, except in each case for such encumbrances or restrictions existing under or by reason of:
(a) agreements 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 amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend, distribution and other payment restrictions than those contained in those agreements on the date of this Indenture;
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:this Indenture, the Notes and the Note Guarantees;
(1c) existing on agreements governing other Indebtedness or Disqualified Capital Stock or Preferred Stock permitted to be incurred under Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the Closing Date restrictions therein are either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Line of Credit Notes and any other agreement in the Note Guarantees or (b) not reasonably likely to have a material adverse effect on the Closing Date ability of the Company to make required payments on the Notes;
(d) applicable law, rule, regulation or order;
(e) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect on at the Closing Date, and any extensions, refinancings, renewals or replacements time of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect acquisition (except to the Holders than those encumbrances extent such Indebtedness or restrictions that are then Capital Stock was incurred in effect and that are being extendedconnection with or in contemplation of such acquisition), refinanced, renewed which encumbrance or replaced;
(2) existing under or by reason of restriction is not applicable law;
(3) existing with respect to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) ; provided that, in the case of Section 4.15(a)(4):Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(if) that restrict customary non-assignment provisions in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to contracts and licenses entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5g) with respect to a Restricted Subsidiary Purchase Money Obligations for property acquired in the ordinary course of business and imposed pursuant to an agreement Capital Lease Obligations that has been entered into for impose restrictions on the sale property purchased or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiaryleased;
(6h) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(i) Refinancing Indebtedness; provided that the 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;
(j) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(k) any agreement or instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to the Issuer property or any assets so acquired and is not and was not created in anticipation of its such acquisition;
(l) encumbrances or restrictions applicable only to a Restricted Subsidiaries Subsidiary that secure Indebtedness is not a Domestic Restricted Subsidiary;
(m) 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 Issuer assets that are the subject of such agreements; and
(n) restrictions on cash or any other deposits or net worth imposed by customers under contracts entered into in the ordinary course of its Restricted Subsidiariesbusiness.
Appears in 1 contract
Samples: Indenture (Hi-Crush Inc.)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to permit to exist or become effective effective, by operation of the charter of such Restricted Subsidiary or by reason of any consensual agreement, instrument, judgment, decree, rule, order, statute or governmental regulation, any encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions permitted by applicable law on its Capital Stock;
(b) make loans or advances or pay any Capital Stock of such Restricted Subsidiary owned by Indebtedness or other obligation owed to the Issuer Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any Company, except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture;
(3) customary non-assignment provisions of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(4) any instrument governing Acquired Indebtedness or Acquired Preferred Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired;
(5) agreements existing on the Closing Issue Date (including the Senior Credit Facility and the 2013 Notes Indenture) as such agreements are from time to time in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementseffect; provided, however, that any amendments or modifications of such agreements that affect the encumbrances and or restrictions of the types subject to this covenant shall not result in any such extensions, refinancings, renewals encumbrances or replacements are no restrictions being less favorable to the Company in any material respect respect, as determined in good faith by the Board of Directors of the Company, than the provisions as in effect before giving effect to the Holders than those encumbrances respective amendment or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedmodification;
(26) existing under or by reason of applicable law;
(3) existing any restriction with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary pending the closing of such sale or disposition;
(67) contained an agreement effecting a refinancing, replacement or substitution of Indebtedness issued, assumed or incurred pursuant to an agreement referred to in the terms of any Indebtedness clause (2), (4) or (5) above or any other agreement pursuant evidencing Indebtedness permitted under this Indenture; provided, however, that the provisions relating to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in any such Indebtedness refinancing, replacement or agreement,
(ii) the encumbrance substitution agreement or restriction is not materially more disadvantageous any such other agreement are no less favorable to the Holders of the Notes than is customary Company in comparable financings (any material respect as determined by the in good faith judgment of by the Board of Directors of the Issuer), and
(iii) Company than the Board of Directors of the Issuer, in its good faith, determines that provisions relating to such encumbrance or restriction will not materially affect the Issuer’s ability contained in agreements referred to make principal in such clause (2), (4) or interest payments on the Notes; or(5);
(7) 8) restrictions on the transfer of the assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.;
(c9) Nothing a licensing agreement to the extent such restrictions or encumbrances limit the transfer of property subject to such licensing agreement;
(10) restrictions relating to Subsidiary Preferred Stock that require that due and payable dividends thereon to be paid in full prior to dividends on such Subsidiary’s common stock;
(11) any agreement or charter provision evidencing Indebtedness or Capital Stock permitted under this Indenture; provided, however, that the provisions relating to such encumbrance or restriction contained in such agreement or charter provision are not less favorable to the Company in any material respect as determined in good faith by the Board of Directors of the Company than the provisions relating to such encumbrance or restriction contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale Indenture;
(12) restrictions on cash, Cash Equivalents or other disposition deposits or net worth imposed under contracts entered into the ordinary course of property business, including such restrictions imposed by customers or assets insurance, surety or bonding companies;
(13) provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary course of business; or
(14) customary restrictions under purchase money Indebtedness permitted under clause (xi) of the Issuer or any definition of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries“Permitted Indebtedness.”
Appears in 1 contract
Samples: Indenture (Lin Tv Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to to, or guarantee any Indebtedness or other obligations of, or make any Investment in, the Issuer Company or any other Restricted Subsidiary; or
, or (4c) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any , except for such encumbrances or restrictions:
restrictions existing under or by reason of (1i) existing on the Closing Date in this IndentureAmended Credit Facility, the Line of Credit and or any other agreement in effect of the Company or the Restricted Subsidiaries outstanding on the Closing Date Issue Date, in each case as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; provided, however, that the encumbrances and restrictions in any such extensionsamendment, refinancings-40- restatement, renewals renewal, replacement or replacements are refinancing is no less favorable more restrictive in any material the aggregate with respect to the Holders than those such encumbrances or restrictions that are then than those contained in effect and that are the agreement being extendedamended, restated, reviewed, replaced or refinanced, renewed or replaced;
; (2ii) existing under or by reason of applicable law;
; (3iii) existing with respect to any Person instrument governing Indebtedness or the property or assets Equity Interests of such an Acquired Person acquired by the Issuer Company or any Restricted Subsidiary, existing Subsidiary as in effect at the time of such acquisition and not (except to the extent such Indebtedness was Incurred by such Acquired Person in connection with, as a result of or in contemplation thereofof such acquisition); provided, which however, that such encumbrances or and restrictions are not applicable to the Company or any Person Restricted Subsidiary, or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property properties or assets of the Issuer Company or any Restricted Subsidiary not otherwise prohibited by this IndentureSubsidiary, or
other than the Acquired Person; (iiiiv) arising or agreed to customary non-assignment provisions in leases entered into in the ordinary course of business, not relating to any Indebtedness, business and that do not, individually or consistent with past practices; (v) Purchase Money Indebtedness for property acquired in the aggregate, detract from ordinary course of business that only imposes encumbrances and restrictions on the value of property or assets of the Issuer or so acquired; (vi) any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all the Equity Interests or substantially all assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (vi) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (vii) refinancing Indebtedness permitted under clause (h) of the Capital Stock ofsecond paragraph of Section 4.04; provided, or property however, that such encumbrances and assets of, such Restricted Subsidiary;
(6) restrictions contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
(i) the encumbrance or restriction applies only are no more restrictive in the event of a payment default or a default with respect to a financial covenant aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such Indebtedness refinancing; or agreement,
(iiviii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienIndenture.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Fabrene Group Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
: (1a) (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer Company or any of its Restricted Subsidiaries;
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer Company or any other of its Restricted Subsidiary;
Subsidiaries; (3b) make loans or advances to the Issuer Company or any other of its Restricted SubsidiarySubsidiaries; or
or (4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other of its Restricted Subsidiary.
Subsidiaries; except (bin each case) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
of: (1) contractual encumbrances or restrictions in effect on the Issue Date, including pursuant to the New Credit Facility and its related documentation and the Senior Subordinated Indenture; (2) this Indenture and the Securities; (3) existing with respect purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired; (4) applicable law or any applicable rule, regulation or order; (5) any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
; (46) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including, without limitation, customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property assets of such Subsidiary; (7) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.04 and 4.18 of this Indenture that limit the right of the debtor to dispose of the assets of, securing such Restricted Subsidiary;
Indebtedness; (68) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (9) other Indebtedness of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 4.04 of this Indenture; (10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; (11) customary provisions contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only leases and other agreements entered into in the event ordinary course of a payment default business; (12) any encumbrances or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders restrictions of the Notes than is customary type referred to in comparable financings clauses (as determined a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (11) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Issuer)Company, and
no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; (iii13) any encumbrances or restrictions that are no more restrictive than those contained in the Board of Directors of New Credit Facility as in effect on the Issuer, in its good faith, determines that such encumbrance Issue Date; or restriction (14) which will not materially affect in the Issuer’s ability aggregate cause the Company not to make have the funds necessary to pay the principal of, premium, if any, or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienSecurities.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4) transfer its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that an such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to the Issuer to, or guaranty any Indebtedness or other Restricted Subsidiary; orobliga-
(4A) transfer its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) non-assignment provisions that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract license or similar property contract, or asset,
(ii) existing by virtue the assignment or transfer of any transfer oflease, agreement to transferlicense or other contract, option (B) customary provisions restricting dispositions of real property interests set forth in any easement or right with respect to, or Lien on, any property or assets similar agreements of the Issuer Company or any Restricted Subsidiary not otherwise prohibited or (C) restrictions on cash or other deposits or net worth imposed by this Indenture, or
(iii) arising or agreed to customers under agreements entered into in the ordinary course of business, not relating to ; (v) Purchase Money Indebtedness or Capital Lease Obligations permitted under Section 4.04 and Section 4.18 that only imposes encumbrances and restrictions on the property so acquired; (vi) any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all the Equity Interests or substantially all assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (vi) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (vii) Permitted Refinancing Indebtedness permitted under clause (iv) of the Capital Stock ofsecond paragraph of Section 4.04; provided, or property however, that such encumbrances and assets of, such Restricted Subsidiary;
(6) restrictions contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is are not materially more disadvantageous restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to the Holders of the Notes than is customary in comparable financings (such refinancing, as determined by the good faith judgment of the Board of Directors of the Issuer)Company; (viii) this Indenture or contained in any other indenture governing debt securities that are not materially more restrictive than those contained in this Indenture, and
(iii) as determined by the Board of Directors of the Issuer, Company or (ix) customary restrictions contained in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability Indebtedness of a Restricted Subsidiary which is permitted to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted be Incurred under this Indenture imposed by the holder of such LienIndenture.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
Subsidiary (it being understood that such transfers shall not include any type of transfer described in clauses (a) or (b) Section 4.13(aabove), except (in each case) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing contractual encumbrances or restrictions in effect on (i) the Closing Issue Date or (ii) the Effective Date, if on substantially the terms described in the Offering Memorandum, including those arising under the Senior Credit Facilities, this Indenture, the Line of Credit Notes and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedGuarantees;
(2) existing under or by reason purchase money obligations for property acquired in the ordinary course of applicable lawbusiness and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(3) existing with respect to applicable law or any Person applicable rule, regulation or the property order;
(4) any agreement or assets other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeSubsidiaries, so acquired or designated;
(5) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(6) contained in the terms of any Secured Indebtedness or any agreement otherwise permitted to be incurred pursuant to which such Indebtedness was issued if:
(i) Sections 10.11 and 10.12 that limit the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders right of the Notes than is customary in comparable financings (as determined by the good faith judgment debtor to dispose of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that assets securing such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; orIndebtedness;
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the holder ordinary course of business;
(8) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 10.11;
(9) customary provisions in partnership agreements, limited liability company organizational documents, joint venture agreements, stockholder agreements or other similar agreements or arrangements that restrict the disposition or distribution of ownership interests in or assets of such Lien.partnership, limited liability company, joint venture, corporation or similar Person;
(c10) Nothing customary provisions contained in this Section 4.13 shall prevent agreements and instruments, including but not limited to leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the Issuer ordinary course of business;
(11) that arises or any Restricted Subsidiary is agreed to in the ordinary course of business and does not detract from restricting the sale or other disposition value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(12) Hedging Obligations;
(13) restrictions created in connection with any Supply Chain Financings that, in the good faith determination of its the Board of Directors of the Issuer, are necessary or advisable to effect such Supply Chain Financings;
(14) supermajority voting requirements existing under corporate charters, by-laws, stockholders agreements and similar documents and agreements; and
(15) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with this Section 10.14: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiaries that secure Subsidiary to other Indebtedness of incurred by the Issuer or any of its such Restricted SubsidiariesSubsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (Apergy Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or, with respect to any other interest or any of participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancingswithout limitation, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Credit Agreement and that are being extended, refinanced, renewed or replacedits related documentation;
(2) existing under or by reason of applicable lawthis Indenture and the Notes;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) that restrict any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in a customary manner existence at the sublettingtime of such acquisition (but not created in contemplation thereof), assignment which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeso acquired;
(56) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary that impose restrictions on the assets to be sold;
(67) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1011 that impose restrictions solely on the Foreign Subsidiaries party thereto;
(10) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(11) customary provisions contained in leases and other agreements entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i12) the any such encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in Foreign Subsidiary pursuant to an agreement governing Indebtedness, Disqualified Stock or preferred stock incurred by such Indebtedness or agreement,Foreign Subsidiary that was permitted by the terms of this Indenture to be incurred;
(ii13) the any such encumbrance or restriction is not pursuant to an agreement governing Indebtedness incurred pursuant to Section 1011(b)(1) or (21), which encumbrances or restrictions will not, in the good faith judgment of the Company’s Board of Directors, materially more disadvantageous affect the Company’s ability to make anticipated principal and interest payments on the Notes as required pursuant to the Holders terms of this Indenture;
(14) any encumbrances or restrictions of the Notes than is customary type referred to in comparable financings clauses (as determined a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (11) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Issuer)Company, no more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(iii15) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the IssuerCompany, in its good faith, determines that are necessary or advisable to effect such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienReceivables Facility.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock or in respect of such Restricted Subsidiary owned by its Equity Interests to the Issuer Company or any of its Restricted SubsidiariesSubsidiary;
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances or pay any Indebtedness or other obligation owed to the Issuer Company or any other Restricted Subsidiary; or
(43) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) The restrictions in Section 4.13(a4.08(a) hereof shall not restrict any apply to encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indentureany applicable law, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals regulation or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedorder;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and the Note Guarantees;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiarynon-assignment provisions in contracts, existing at the time of such acquisition licenses and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to leases entered into in the ordinary course of business;
(4) agreements as in effect on the date of this Indenture (including, without limitation, the Credit Facilities) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not relating to any Indebtednessmaterially more restrictive, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries 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;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.;
(c6) Nothing contained in any agreement to sell assets permitted under this Section 4.13 shall prevent Indenture to any Person pending the Issuer closing of such sale;
(7) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(8) any instrument of a Person acquired by the Company or any Restricted Subsidiary from restricting as in effect at the sale time of such acquisition (except to the extent such instrument was entered into by such Person in connection with, as a result of or in contemplation of such acquisition);
(9) any other agreement governing Indebtedness entered into after the Issue Date that contains encumbrances and restrictions that, taken as a whole, are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date;
(10) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or similar Person;
(11) Purchase Money Indebtedness incurred in compliance with Section 4.09 that impose restrictions of the nature described in clause (c) above on the assets acquired;
(12) restrictions on cash or other disposition deposits or net worth imposed by suppliers, landlords or customers under contracts entered into in the ordinary course of property business;
(13) restrictions contained in any Indebtedness incurred by any Foreign Subsidiary under item (12) under Section 4.09 so long as such Indebtedness is (i) limited to restrictions on such Foreign Subsidiary incurring such Indebtedness and (ii) such Indebtedness was permitted to be incurred under Section 4.09; and
(14) any amendments or assets refinancings of the Issuer contracts, instruments or any of its Restricted Subsidiaries obligations referred to in clauses (1) through (13) above; provided that secure Indebtedness such amendments or refinancings are, in the good faith judgment of the Issuer Company’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or any of its Restricted Subsidiariesrefinancing.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective effective, any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
: (1a) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary or any other interest or participation in, or measured by, its profits, owned by the Issuer Company or any of its Restricted Subsidiaries;
(2) Subsidiary, or pay any Indebtedness owed to to, the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to the Issuer Company, or any other Restricted Subsidiary; or
(4c) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this IndentureCompany, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of except for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of of:
(i) applicable lawlaw or regulations;
(3ii) existing with respect customary provisions restricting subletting or assignment of any lease or license of the Company or any Restricted Subsidiary;
(iii) any instrument governing Indebtedness or any other encumbrance or restriction of a Person affecting such Person or its property or assets acquired by the Company or any Restricted Subsidiary at the time of such acquisition (provided that such Indebtedness or other encumbrance or restriction was not issued in contemplation of the acquisition), which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4iv) the New Credit Facility;
(v) any other agreement or instrument evidencing Indebtedness of a Foreign Subsidiary permitted under this Indenture;
(vi) any other agreement or instrument in effect as of or entered into on the Issue Date or imposed by this Indenture, the Guarantees, the Series A Securities, the Series B Securities, or the guarantees thereon (or similar limitations pursuant to other notes issued by the Company or other indentures relating thereto that are substantially similar to those set forth in this Indenture);
(vii) any Refinancing Indebtedness permitted under Section 4.04; provided that the encumbrances and restrictions created in connection with such Refinancing Indebtedness are no more restrictive in any material respect with regard to the interests of the holders of Securities than the encumbrances and restrictions in the case refinanced Indebtedness (as determined by the Board of Section 4.15(a)(4):Directors in good faith);
(iviii) that the terms of purchase money obligations, but only to the extent such purchase money obligations restrict in a customary manner or prohibit the subletting, assignment or transfer of any the property or asset that is a lease, license, conveyance or contract or similar property or asset,so acquired;
(iiix) existing by virtue of any transfer of, other agreement or instrument evidencing or relating to transfer, option or right with respect to, or Lien on, any property or assets secured Indebtedness of the Issuer Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, orpermitted to be issued pursuant to the provisions of Sections 4.04 and 4.18 that limit the right of the debtor to dispose of the property or assets securing such Indebtedness;
(iiix) arising or agreed to customary net worth provisions contained in leases and other agreements entered into in the ordinary course of business, not relating ;
(xi) the terms of agreements with respect to any Indebtedness, and that do not, individually or in the aggregate, detract from the value sale of property or assets of the Issuer Company or any Restricted a Subsidiary in any manner material to of the Issuer and its Restricted Subsidiaries taken as a wholeCompany otherwise permitted by this Indenture, provided that such restriction terminates if such transaction is not consummated;
(5xii) with respect to a Restricted Subsidiary and imposed pursuant to an agreement the terms of agreements that has have been entered into for the sale or disposition of all or substantially all of the Capital Stock ofStock, business, assets or properties of a Restricted Subsidiary, provided that such restriction terminates if such transaction is not consummated;
(xiii) with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, instruments in existence at the time such Person becomes a Restricted Subsidiary and not entered into in connection with, or property and assets in contemplation of, such Person becoming a Restricted Subsidiary;
(6xiv) contained customary provisions in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default joint venture agreements and other similar agreements with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous dividends and other similar distributions to the Holders parties to such joint venture, the disposition or distribution of assets or property of such joint venture, or transactions between or among the Notes than is customary in comparable financings joint venture and the parties to such joint venture; or (as determined by the good faith judgment of the Board of Directors of the Issuer)xv) any Permitted Lien, and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability with respect to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of the assets or property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariessubject to such Permitted Lien.
Appears in 1 contract
Samples: Indenture (Carson Products Co)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or, with respect to any other interest or any of participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawof:
(i) contractual encumbrances or restrictions in effect on the Issue Date, including, without limitation, pursuant to the First Lien Notes and the First Lien Notes Indenture, the Credit Agreement and its related documentation and the Senior Subordinated Notes and the indenture governing the Senior Subordinated Notes;
(3ii) existing with respect the Notes and any Third Lien Indebtedness and the indentures related thereto;
(iii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(iv) applicable law or any applicable rule, regulation or order;
(v) any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4vi) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including, without limitation, customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary that impose restrictions on the assets to be sold;
(6vii) secured Indebtedness otherwise permitted to be incurred pursuant to Section 5.10 and Section 5.11 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(viii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(ix) other Indebtedness, Disqualified Stock or preferred stock of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 5.10 that impose restrictions solely on the Foreign Subsidiaries party thereto;
(x) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(xi) customary provisions contained in leases and other agreements entered into in the terms ordinary course of business;
(xii) any Indebtedness encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any agreement pursuant amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to which such Indebtedness was issued if:
in clauses (i) the encumbrance through (xi) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only refinancings are, in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer)Company no more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(iiixiii) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the IssuerCompany, in its good faith, determines that are necessary or advisable to effect such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienReceivables Facility.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Supplemental Indenture (Sealy Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to permit to exist or become effective effective, by operation of the charter of such Restricted Subsidiary or by reason of any consensual agreement, instrument, judgment, decree, rule, order, statute or governmental regulation, any encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions permitted by applicable law on its Capital Stock;
(b) make loans or advances or pay any Capital Stock of such Restricted Subsidiary owned by Indebtedness or other obligation owed to the Issuer Company or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any Company, except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture;
(3) customary non-assignment provisions of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(4) any instrument governing Acquired Indebtedness or Acquired Preferred Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired;
(5) agreements existing on the Closing Issue Date (including the Senior Credit Facility and the 2018 Notes Indenture) as such agreements are from time to time in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementseffect; provided, however, that any amendments or modifications of such agreements that affect the encumbrances and or restrictions of the types subject to this covenant shall not result in any such extensions, refinancings, renewals encumbrances or replacements are no restrictions being less favorable to the Company in any material respect respect, as determined in good faith by the Board of Directors of the Company, than the provisions as in effect before giving effect to the Holders than those encumbrances respective amendment or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedmodification;
(26) existing under or by reason of applicable law;
(3) existing any restriction with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary pending the closing of such sale or disposition;
(67) contained an agreement effecting a refinancing, replacement or substitution of Indebtedness issued, assumed or incurred pursuant to an agreement referred to in the terms of any Indebtedness clause (2), (4) or (5) above or any other agreement pursuant evidencing Indebtedness permitted under this Indenture; provided, however, that the provisions relating to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in any such Indebtedness refinancing, replacement or agreement,
(ii) the encumbrance substitution agreement or restriction is any such other agreement are not materially more disadvantageous less favorable to the Holders of the Notes than is customary Company in comparable financings (any material respect as determined by the in good faith judgment of by the Board of Directors of the Issuer), and
(iii) Company than the Board of Directors of the Issuer, in its good faith, determines that provisions relating to such encumbrance or restriction will not materially affect the Issuer’s ability contained in agreements referred to make principal in such clause (2), (4) or interest payments on the Notes; or(5);
(7) 8) restrictions on the transfer of the assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.;
(c9) Nothing a licensing agreement to the extent such restrictions or encumbrances limit the transfer of property subject to such licensing agreement;
(10) restrictions relating to Subsidiary Preferred Stock that require due and payable dividends thereon to be paid in full prior to dividends on such Subsidiary’s common stock;
(11) any agreement or charter provision evidencing Indebtedness or Capital Stock permitted under this Indenture; provided, however, that the provisions relating to such encumbrance or restriction contained in such agreement or charter provision are not less favorable to the Company in any material respect as determined in good faith by the Board of Directors of the Company than the provisions relating to such encumbrance or restriction contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale Indenture;
(12) restrictions on cash, Cash Equivalents or other disposition deposits or net worth imposed under contracts entered into the ordinary course of property business, including such restrictions imposed by customers or assets insurance, surety or bonding companies;
(13) provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary course of business; or
(14) customary restrictions under purchase money Indebtedness permitted under clause (xi) of the Issuer or any definition of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries“Permitted Indebtedness.”
Appears in 1 contract
Samples: Indenture (Lin Tv Corp.)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Senior Credit Facility and that are being extended, refinanced, renewed or replacedthe related documentation and related Hedging Obligations;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and the Guarantees;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(4) applicable law or assets any applicable rule, regulation or order;
(5) any agreement or other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person and its Subsidiaries, so acquired or the property or assets of such Person so acquireddesignated;
(46) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1007 and 1008 that limit the right of the debtor to dispose of the collateral securing such Indebtedness; 91
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1007;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture and asset sale agreements and Sale and Lease-Back Transaction agreements;
(11) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i12) the encumbrance or restriction applies only restrictions created in the event of a payment default or a default connection with respect to a financial covenant contained any Receivables Facility that, in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment determination of the Board of Directors of the Issuer), andare necessary or advisable to effect such Receivables Facility;
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(713) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing or conditions contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the trading, netting, operating, construction, service supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of its the Issuer or such Restricted SubsidiariesSubsidiary or the assets or property of any other Restricted Subsidiary; and
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with the covenants set forth in this Section 1010: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to permit to exist or become effective effective, by operation of the charter of such Restricted Subsidiary or by reason of any consensual agreement, instrument, judgment, decree, rule, order, statute or governmental regulation, any encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on its Capital Stock; (b) make loans or advances or pay any Capital Stock of such Restricted Subsidiary owned by Indebtedness or other obligation owed to the Issuer Company or any of its Restricted Subsidiaries;
; or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any Company, except for such encumbrances or restrictions:
restrictions existing under or by reason of: (1) applicable law; (2) this Indenture; (3) customary nonassignment provisions of any lease governing a leasehold interest of the Company or any Restricted Subsidiary; (4) any instrument governing Acquired Indebtedness or Acquired Preferred Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; (5) agreements existing on March 3, 1998 (including the Closing Date Credit Agreement and the Existing Company Notes) as such agreements are from time to time in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementseffect; provided, however, that any amendments or modifications of such agreements that affect the encumbrances and or restrictions of the types subject to this covenant shall not result in any such extensions, refinancings, renewals encumbrances or replacements are no restrictions being less favorable to the Company in any material respect respect, as determined in good faith by the Board of Directors of the Company, than the provisions as in effect before giving effect to the Holders than those encumbrances respective amendment or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
modification; (26) existing under or by reason of applicable law;
(3) existing any restriction with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of such Restricted Subsidiary pending the Issuer closing of such sale or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.disposition;
Appears in 1 contract
Samples: Indenture (Lin Television Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Senior Credit Facilities and that are being extended, refinanced, renewed or replacedthe related documentation and related Hedging Obligations;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and the Guarantees;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) any agreement or other instrument of a Person acquired by or merged or consolidated with or into Parent or any Restricted Subsidiary, or of an Unrestricted Subsidiary that restrict is designated a Restricted Subsidiary, or that is assumed in a customary manner connection with the sublettingacquisition of assets from such Person, assignment in each case that is in existence at the time of such transaction (but not created in contemplation thereof), which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person and its Subsidiaries, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer Person and its Restricted Subsidiaries taken as a wholeSubsidiaries, so acquired or designated;
(56) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) contained Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the terms ordinary course of any Indebtedness business;
(9) other Indebtedness, Disqualified Stock or any agreement preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to which such Indebtedness was issued if:
Section 1011 and either (iA) the provisions relating to such encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness are no 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 Senior Credit Facilities as in effect on the Issue Date or agreement,
(iiB) the any such encumbrance or restriction is contained in such Indebtedness does not materially more disadvantageous to prohibit (except upon a default or an event of default thereunder) the Holders payment of the Notes than is customary dividends in comparable financings (an amount sufficient, as determined by the Board of Directors of the Company in good faith to make scheduled payments of cash interest on the Notes when due;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
(11) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the ordinary course of business;
(12) restrictions created in connection with any Receivables Facility that are necessary or advisable to effect such Receivables Facility; and
(13) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Issuer)Company, and
(iii) the Board of Directors of the Issuer, no more restrictive in its good faith, determines that any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lienrefinancing.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Affinia Group Intermediate Holdings Inc.)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will not, and will not Create or permit any of its Restricted Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by to the Issuer Borrower or any of its Restricted SubsidiariesSubsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the 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) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3ii) make loans or advances to the Issuer or any other Restricted SubsidiaryBorrower; or
(4iii) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted SubsidiaryBorrower.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and The restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect Section 6.08(a) will not apply to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(i) agreements as in effect as of applicable lawthe Closing Date and specified on Schedule 6.08 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not, in the good faith judgment of the Board of Directors, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Closing Date;
(3ii) the Loan Documents and the ABL Documents;
(iii) applicable law, rule, regulation, order, approval, license, permit or similar restriction (whether or not existing with respect on the Closing Date);
(iv) (a) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Borrower or any of its Restricted Subsidiaries as in effect at the time of such acquisition, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person the Person, so acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and does not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors materially adversely affect the ability of the IssuerBorrower to make scheduled payments of interest and principal on the Loans; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred and (b) any amendment, modification, replacement or refinancing thereof; provided, however, that such encumbrances or restrictions are not, in the good faith judgment of the Board of Directors, materially more restrictive, taken as a whole, with respect to consensual encumbrances or restrictions set forth in clause (i), and
(ii) or (iii) of Section 6.08(a) than such encumbrances or restrictions prior to such amendment, modification, replacement or refinancing;
(v) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;
(vi) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased (plus improvements and accessions to such property, or assets or proceeds or distributions thereof) of the nature described in Section 6.08(a)(iii);
(vii) any agreement for the sale or other disposition of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending such sale or other disposition;
(viii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not, in the good faith judgment of the Board of Directors of the IssuerDirectors, in its good faith, determines that such encumbrance or restriction will not materially and adversely affect the IssuerBorrower’s ability to make anticipated principal or interest payments on the Notes; orTerm Loans (as determined in good faith by the Borrower);
(7ix) Liens permitted to be incurred under Section 6.02 that limit the right of the debtor to dispose of the assets subject to such Liens (plus improvements and accessions to such property, or assets or proceeds or distributions thereof);
(x) customary provisions in joint venture agreements or other similar agreements entered into in the ordinary course;
(xi) [reserved];
(xii) customary provisions in Permitted Swap Obligations;
(xiii) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, licensing agreements and other similar agreements entered into with the approval of the Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(xiv) restrictions on cash or other deposits or net worth imposed by customers under contracts or other agreements entered into in the ordinary course of business;
(xv) restrictions in other Indebtedness incurred in compliance with Section 6.01; provided that such restrictions, taken as a whole, in the good faith judgment of the Board of Directors, will not materially and adversely affect the Borrower’s ability to make anticipated principal or interest payments on the Term Loans (as determined in good faith by the Borrower);
(xvi) encumbrances on property that exist at the time such property was acquired by the Borrower or any Restricted Subsidiary;
(xvii) restrictions applicable to Foreign Subsidiaries of the Borrower or of any Guarantor, arising under the documentation governing Indebtedness of Foreign Subsidiaries that is permitted to be incurred by this Agreement;
(xviii) Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply to such Receivables Entity;
(xix) encumbrances or restrictions consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of assets subject to any Lien permitted under this Indenture imposed the lease or the property leased thereunder;
(xx) customary guarantees by the holder Borrower of such Lien.non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements entered into by the Subsidiary in the ordinary course of business; and
(cxxi) Nothing restrictions or conditions contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale trading, netting, operating, construction, service, supply, purchase or other disposition of property or assets of agreement to which the Issuer Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer Borrower or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary. For purposes of determining compliance with this Section 6.08, the subordination of loans or advances made to the Borrower or a Restricted Subsidiary to other Indebtedness incurred by the Borrower or any of its such Restricted SubsidiariesSubsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Credit Agreement (Kate Spade & Co)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Fedders Corporation and the Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective effective, any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
that is not a Subsidiary Guarantor to (1a) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary or any other interest or participation in, or measured by, its profits, owned by Fedders Corporation, the Issuer Company or any of its Restricted Subsidiaries;
(2) Subsidiary, or pay any Indebtedness owed to to, Fedders Corporation, the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to Fedders Corporation or the Issuer Company, or any other Restricted Subsidiary; or
(4c) transfer any of its property properties or assets to Fedders Corporation or the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this IndentureCompany, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of except for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(i) any agreement, obligation or instrument in effect on the Issue Date, and any amendment, restatement or extension of applicable lawsuch agreement, obligation or instrument to the extent such encumbrances or restrictions are not materially more restrictive to the Securityholders than those in effect on the Issue Date;
(3ii) existing with respect Indebtedness permitted (A) under paragraph (a) of Section 4.04, (B) under clauses (i) or (iii) of paragraph (b) of Section 4.04 or clauses (i), (v), (vi) or (viii) of the definition of Other Permitted Indebtedness, or (C) by agreements and transactions permitted under Section 4.06;
(iii) customary provisions restricting subletting or assignment of any lease or license of Fedders Corporation, the Company or any Restricted Subsidiary;
(iv) any instrument governing Indebtedness or any other encumbrance or restriction of a Person acquired by Fedders Corporation, the Company or any Restricted Subsidiary at the time of such acquisition, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4v) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeCredit Agreement;
(5vi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale any Refinancing Indebtedness permitted under Section 4.04 or disposition of all clauses (i), (v) or substantially all (viii) of the Capital Stock of, or property definition of Other Permitted Indebtedness; provided that the encumbrances and assets of, restrictions created in connection with such Restricted SubsidiaryRefinancing Indebtedness are no more restrictive in any material respect with regard to the interests of the Holders of Securities than the encumbrances and restrictions in the refinanced Indebtedness;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(ivii) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Existing Notes; or
(7viii) restrictions on the terms of purchase money obligations, but only to the extent such purchase money obligations restrict or prohibit the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) property so acquired. Nothing contained in this Section 4.13 4.15 shall prevent Fedders Corporation or the Issuer Company from entering into any agreement or any Restricted Subsidiary from instrument providing for the incurrence of Permitted Liens or restricting the sale or other disposition of property or assets of Fedders Corporation, the Issuer Company or any of its the Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesare subject to Permitted Liens."
SECTION 2.9 Amendment to Section 4.16
Appears in 1 contract
Samples: First Supplemental Indenture and Waiver (Fedders Corp /De)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(1) (A) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2B) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(32) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(43) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawof:
(A) contractual encumbrances or restrictions in effect on the Issue Date or, if on substantially the terms described in the Offering Document, the Completion Date, including, pursuant to the Senior Credit Facility and the related documentation and related Hedging Obligations;
(B) this Indenture, the Notes and the Guarantees;
(C) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (3) existing with respect to any Person or above on the property so acquired;
(D) applicable law or assets any applicable rule, regulation or order;
(E) any agreement or other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person and its Subsidiaries, so acquired or the property or assets of such Person so acquireddesignated;
(4F) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(6G) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(H) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(I) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1011;
(J) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture and asset sale agreements and Sale and Lease-Back Transaction agreements;
(K) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(iL) the encumbrance or restriction applies only restrictions created in the event of a payment default or a default connection with respect to a financial covenant contained any Receivables Facility that, in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment determination of the Board of Directors of the Issuer), andare necessary or advisable to effect such Receivables Facility;
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7M) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing or conditions contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the trading, netting, operating, construction, service supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of its the Issuer or such Restricted SubsidiariesSubsidiary or the assets or property of any other Restricted Subsidiary; and
(N) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (M) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(4) For purposes of determining compliance with the covenants set forth in this Section 1014: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (Aar Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Parent shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions permitted by applicable law to the Parent or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
profits, or (2ii) pay any Indebtedness owed to the Issuer Parent or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Parent or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Parent or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawof:
(i) contractual encumbrances or restrictions in effect on the Issue Date, including, pursuant to the Senior Credit Facility, the ABL Credit Facility and the Canadian Facility and the related documentation and related Hedging Obligations;
(3ii) existing this Indenture, the Notes and the Guarantees;
(iii) purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(iv) applicable law or any applicable rule, regulation or order;
(v) any agreement or other instrument of a Person acquired by or merged or consolidated with respect or into the Parent or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), 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 property or assets of such the Person and its Subsidiaries, so acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquireddesignated;
(4vi) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed of the Parent pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(6vii) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 10.07 and 10.08 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(viii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(ix) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 10.07;
(x) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture and asset sale agreements and Sale and Lease-Back Transaction agreements;
(xi) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(ixii) the encumbrance or restriction applies only restrictions created in the event of a payment default or a default connection with respect to a financial covenant contained any Receivables Facility that, in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment determination of the Board of Directors of the Issuer)Parent, andare necessary or advisable to effect such Receivables Facility;
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7xiii) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing or conditions contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the trading, netting, operating, construction, service supply, purchase, sale or other disposition of property or assets of agreement to which the Issuer Parent or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that secure Indebtedness such agreement prohibits the encumbrance of solely the property or assets of the Issuer Parent or such Restricted Subsidiary that are the subject of such agreement, the payment 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; and
(xiv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any 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, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Parent’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with the covenants set forth in this Section 10.10: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Parent or a Restricted Subsidiary of the Parent to other Indebtedness incurred by the Parent or any of its such Restricted SubsidiariesSubsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (GMS Inc.)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
: (1A) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3B) make loans or advances to, or guarantee any Indebtedness or other obligations of, the Company or any other Restricted Subsidiary or (C) transfer any of its properties or assets to the Issuer Company or any other Restricted Subsidiary; or
(4) transfer its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any , except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this IndentureSenior Credit Facility and Existing Indebtedness, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Distribution Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; provided, however, that the encumbrances and restrictions in any such extensionsamendment, refinancingsrestatement, renewals renewal, replacement or replacements are refinancing is no less favorable more restrictive in any material the aggregate with respect to the Holders than those such encumbrances or restrictions that are then than those contained in effect and that are the agreement being extendedamended, restated, renewed, replaced or refinanced, renewed or replaced;
(2) existing under or by reason of any applicable law, rule, regulation or order;
(3) existing with respect any instrument of an Acquired Person acquired by the Company or any Restricted Subsidiary as in effect at the time of such acquisition (except to the extent such instrument was entered into by such Acquired Person in connection with, as a result of or in contemplation of such acquisition); provided, however, that such encumbrances and restrictions are not applicable to any Restricted Subsidiary, or the properties or assets of any Restricted Subsidiary, other than the Acquired Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquiredAcquired Person;
(4) customary non-assignment provisions in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the sublettingleases, assignment licenses or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholecontracts;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Amo Holdings LLC)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to, or guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary or (c) transfer any of its properties or assets to the Issuer Company or any other Restricted Subsidiary; or
, except for such encumbrances or restrictions existing under or by reason of (4i) transfer its property or assets to the Issuer Existing Credit Facility, or any other agreement of the Company or the Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing Subsidiaries outstanding on the Closing Date Issue Date, in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date each case as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; provided, however, that the encumbrances and restrictions in any such extensionsamendment, refinancingsrestatement, renewals renewal, replacement or replacements are no less favorable refinancing is not materially more restrictive in any material the aggregate with respect to the Holders than those such encumbrances or restrictions that are then than those contained in effect and that are the agreement being extendedamended, restated, reviewed, replaced or refinanced, renewed or replaced;
(2ii) existing under or by reason of applicable law;
, (3iii) existing with respect to any Person instrument governing Indebtedness or the property or assets Equity Interests of such an Acquired Person acquired by the Issuer Company or any Restricted Subsidiary, existing Subsidiary as in effect at the time of such acquisition and not (except to the extent such Indebtedness was Incurred by such Acquired Person in connection with, as a result of or in contemplation thereofof such acquisition); provided, which however, that such encumbrances or and restrictions are not applicable to the Company or any Person Restricted Subsidiary, or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property properties or assets of the Issuer Company or any Restricted Subsidiary not otherwise prohibited by this IndentureSubsidiary, or
other than the Acquired Person, (iiiiv) arising customary non-assignment provisions in leases, licenses or agreed to other agreements entered into in the ordinary course of businessbusiness and consistent with past practices, not relating to (v) any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all the Equity Interests or substantially all assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (v) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto, (vi) refinancing indebtedness permitted under clause (g) of the Capital Stock ofsecond paragraph of Section 4.04; provided, or property however, that such encumbrances and assets of, such Restricted Subsidiary;
(6) restrictions contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is are not materially more disadvantageous restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing, (vii) the Holders Indenture and the Securities and (viii) Purchase Money Indebtedness that imposes restrictions of the Notes than is customary nature described in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
clause (c) Nothing contained in this Section 4.13 shall prevent above on the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesacquired.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Borrower or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Borrower or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Borrower or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Borrower or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as contractual encumbrances or restrictions in effect on the Closing Date, and any extensionsincluding, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Senior Credit Facilities and that are being extended, refinanced, renewed or replacedthe related documentation;
(2) existing under or by reason of applicable lawthis Agreement and the Loans;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) that restrict any agreement or other instrument of a Person acquired by the Borrower or any Restricted Subsidiary in a customary manner existence at the sublettingtime of such acquisition (but not created in contemplation thereof), assignment which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeso acquired;
(56) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(67) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 10.1 and 10.4 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be Incurred subsequent August 20, 2004 pursuant to Section 10.1;
(10) customary provisions in joint venture agreements and other similar agreements;
(11) customary provisions contained in leases and other agreements entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i12) the encumbrance any encumbrances or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders restrictions of the Notes than is customary type referred to in comparable financings clauses (as determined a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (11) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Issuer)Borrower no more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(iii13) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the IssuerBorrower, in its good faith, determines that are necessary or advisable to effect such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienReceivables Facility.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Issuer Company or any of its other Restricted Subsidiaries;
Subsidiary, (2ii) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3iii) make any loans or advances to the Issuer Company or any other Restricted Subsidiary; or
, (4iv) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary or (v) guarantee any Indebtedness of the Company or any other Restricted Subsidiary.
(b) Section 4.13(aThe foregoing clause (a) shall not restrict any encumbrances or restrictions:
restrictions (1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2i) existing under or by reason of any agreement in effect on the Original Issue Date; (ii) existing by reason of applicable law;
; (3iii) existing with respect to any Person or the property or assets of such Person acquired by the Issuer Company or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
, and (4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(iiiv) existing under or by virtue reason of any transfer ofcustomary non-assignment provisions in leases, agreement to transferlicense agreements and franchise agreements governing leasehold interests, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, licenses and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material franchises to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, extent such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on provisions restrict the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lienlease or the property leased, the license or the franchise thereunder.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to permit to exist or become effective effective, by operation of the charter of such Restricted Subsidiary or by reason of any consensual agreement, instrument, judgment, decree, rule, order, statute or governmental regulation, any encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on its Capital Stock; (b) make loans or advances or pay any Capital Stock of such Restricted Subsidiary owned by Indebtedness or other obligation owed to the Issuer Company or any of its Restricted Subsidiaries;
; or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any Company, except for such encumbrances or restrictions:
restrictions existing under or by reason of: (1) applicable law; (2) this Indenture; (3) customary nonassignment provisions of any lease governing a leasehold interest of the Company or any Restricted Subsidiary; (4) any instrument governing Acquired Indebtedness or Acquired Preferred Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; (5) agreements existing on the Closing Issue Date (including the Credit Facilities) as such agreements are from time to time in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementseffect; provided, however, that any amendments or modifications of such agreements that affect the encumbrances and or restrictions of the types subject to this covenant shall not result in any such extensions, refinancings, renewals encumbrances or replacements are no restrictions being less favorable to the Company in any material respect respect, as determined in good faith by the Board of Directors of the Company, than the provisions as in effect before giving effect to the Holders than those encumbrances respective amendment or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
modification; (26) existing under or by reason of applicable law;
(3) existing any restriction with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
Subsidiary pending the closing of such sale or disposition; (67) contained an agreement effecting a refinancing, replacement or substitution of Indebtedness issued, assumed or incurred pursuant to an agreement referred to in the terms of any Indebtedness clause (2), (4) or (5) above or any other agreement pursuant evidencing Indebtedness permitted under this Indenture; provided, however, that the provisions relating to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in any such Indebtedness refinancing, replacement or agreement,
(ii) the encumbrance substitution agreement or restriction is not materially more disadvantageous any such other agreement are no less favorable to the Holders of the Notes than is customary Company in comparable financings (any material respect as determined by the in good faith judgment of by the Board of Directors of the Issuer), and
(iii) Company than the Board of Directors of the Issuer, in its good faith, determines that provisions relating to such encumbrance or restriction will not materially affect the Issuer’s ability contained in agreements referred to make principal in such clause (2), (4) or interest payments on the Notes(5); or
(7) 8) restrictions on the transfer of the assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
; (c9) Nothing a licensing agreement to the extent such restrictions or encumbrances limit the transfer of property subject to such licensing agreement; (10) restrictions relating to Subsidiary Preferred Stock that require that due and payable dividends thereon to be paid in full prior to dividends on such Subsidiary’s common stock; or (11) any agreement or charter provision evidencing Indebtedness or Capital Stock permitted under this Indenture; provided, however, that the provisions relating to such encumbrance or restriction contained in such agreement or charter provision are not less favorable to the Company in any material respect as determined in good faith by the Board of Directors of the Company than the provisions relating to such encumbrance or restriction contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted SubsidiariesIndenture.
Appears in 1 contract
Samples: Indenture (Lin Television Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
: (1A) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3B) make loans or advances to, or guaranty any Indebtedness or other obligations of, the Company or any other Restricted Subsidiary or (C) transfer any of its properties or assets to the Issuer Company or any other Restricted Subsidiary; or
, except for such encumbrances or restrictions existing under or by reason of (41) transfer its property or assets to the Issuer Senior Credit Facility, or any other agreement of the Company or the Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing Subsidiaries outstanding on the Closing Date Issue Date, in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date each case as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements of such agreementsrefinancings thereof; provided, however, that the encumbrances and restrictions in any such extensionsamendment, refinancingsrestatement, renewals renewal, replacement or replacements are refinancing is no less favorable more restrictive in any material the aggregate with respect to the Holders than those such encumbrances or restrictions that are then than those contained in effect and that are the agreement being extendedamended, restated, renewed, replaced or refinanced, renewed or replaced;
; (2) existing under or by reason of applicable law;
; (3) existing with respect to any Person or the property or assets instrument of such an Acquired Person acquired by the Issuer Company or any Restricted Subsidiary, existing Subsidiary as in effect at the time of such acquisition and not Incurred (except to the extent such instrument was entered into by such Acquired Person in connection with, as a result of or in contemplation thereofof such acquisition); provided, which however, that such encumbrances or and restrictions are not applicable to any Person Restricted Subsidiary, or the property properties or assets of any Person Restricted Subsidiary, other than such Person or the property or assets of such Person so acquired;
Acquired Person; (4) customary non-assignment provisions in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the sublettingleases, assignment licenses or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
contracts; (5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Tanner Chemicals Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Issuer or any of Restricted Subsidiary on its Restricted Subsidiaries;
Capital Stock or (2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing contractual encumbrances or restrictions in effect on (i) the Closing Issue Date or (ii) the Effective Date, if on substantially the terms described in the Offering Circular, including those arising under the ABL Revolving Credit Facility, the Term Loan Facility, this Indenture, the Line of Credit Notes and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedGuarantees;
(2) existing under or by reason purchase money obligations for property acquired in the ordinary course of applicable lawbusiness and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(3) existing with respect to applicable law or any Person applicable rule, regulation or the property order;
(4) any agreement or assets other instrument of such a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, existing or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such acquisition and transaction (but not Incurred created in contemplation thereof), which encumbrances encumbrance or restrictions are restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of any the Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeSubsidiaries, so acquired or designated;
(5) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;
(6) contained in the terms of any Secured Indebtedness or any agreement otherwise permitted to be incurred pursuant to which such Indebtedness was issued if:
(i) Sections 1011 and 1012 that limit the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders right of the Notes than is customary in comparable financings (as determined by the good faith judgment debtor to dispose of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that assets securing such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; orIndebtedness;
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture cash or other deposits or net worth imposed by customers under contracts entered into in the holder ordinary course of such Lien.business;
(c8) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Effective Date pursuant to Section 1011;
(9) Nothing customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
(10) customary provisions contained in this Section 4.13 shall prevent agreements and instruments, including but not limited to leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the Issuer ordinary course of business;
(11) that arises or any Restricted Subsidiary is agreed to in the ordinary course of business and does not detract from restricting the sale or other disposition value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(12) Hedging Obligations;
(13) restrictions created in connection with any Receivables Facility that, in the good faith determination of its the Issuer, are necessary or advisable to effect such Receivables Facility;
(14) restrictions arising in connection with cash or other deposits permitted under Section 1012;
(15) customary restrictions and conditions contained in the document relating to any Lien so long as (i) such Lien is a Permitted Lien and such restrictions or conditions relate only to the specific asset subject to such Lien and (ii) such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this covenant; and
(16) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) above; provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with this Section 1014: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiaries that secure Subsidiary to other Indebtedness of incurred by the Issuer or any of its such Restricted SubsidiariesSubsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (Entegris Inc)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective effective, any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary or any other interest or participation in, or measured by, its profits, owned by the Issuer Company or any of its Restricted Subsidiaries;
(2) Subsidiary, or pay any Indebtedness owed to to, the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to the Issuer Company, or any other Restricted Subsidiary; or
(4c) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this IndentureCompany, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of except for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of of:
(i) applicable law;
(3ii) existing with respect Indebtedness permitted (A) under paragraph (a) of Section 4.04, (B) under clauses (i) or (iii) of paragraph (b) of Section 4.04 or clauses (i), (v), (vi) or (viii) of the definition of Other Permitted Indebtedness, or (C) by agreements and transactions permitted under Section 4.06;
(iii) customary provisions restricting subletting or assignment of any lease or license of the Company or any Restricted Subsidiary;
(iv) any instrument governing Indebtedness or any other encumbrance or restriction of a Person acquired by the Company or any Restricted Subsidiary at the time of such acquisition, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4v) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeCredit Agreement;
(5vi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale any Refinancing Indebtedness permitted under Section 4.04 or disposition of all clauses (i), (v) or substantially all (viii) of the Capital Stock of, or property definition of Other Permitted Indebtedness; provided that the encumbrances and assets of, restrictions created in connection with such Restricted SubsidiaryRefinancing Indebtedness are no more restrictive in any material respect with regard to the interests of the Holders of Securities than the encumbrances and restrictions in the refinanced Indebtedness;
(6vii) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies purchase money obligations, but only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders extent such purchase money obligations restrict or prohibit the transfer of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notesproperty so acquired; or
(7viii) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) 1997 Notes. Nothing contained in this Section 4.13 4.16 shall prevent the Issuer Company from entering into any agreement or any Restricted Subsidiary from instrument providing for the incurrence of Permitted Liens or restricting the sale or other disposition of property or assets of the Issuer Company or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesare subject to Permitted Liens.
Appears in 1 contract
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4iv) transfer its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) . The foregoing provisions shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders of the Securities than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) in the case of clause (iii) and (iv) in the first paragraph of this Section 4.10, imposed under any applicable documents or instruments pertaining to any Secured Indebtedness (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such assets);
(3) existing under or by reason of applicable law;
(34) existing with respect to any Person or the property or assets of such Person acquired by the Issuer Company or any of its Restricted SubsidiarySubsidiaries, existing at the time of such acquisition and not Incurred incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(45) in the case of clause (iv) in the first paragraph of this Section 4.15(a)(4):4.10:
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,;
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer Company or any of its Restricted Subsidiary Subsidiaries not otherwise prohibited by this Indenture, ; or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer Company or any of its Restricted Subsidiary Subsidiaries in any manner material to the Issuer Company and its Restricted Subsidiaries taken as a whole;
(56) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;; or
(67) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant after the expiration of any cure period and the giving of any required notice contained in such Indebtedness or agreement,;
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Securities than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the IssuerCompany), ; and
(iii) the Board of Directors of the Issuer, in its good faith, Company determines that such an encumbrance or restriction will not materially affect the Issuer’s such Person's ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) Securities. Nothing contained in this Section 4.13 4.10 shall prevent the Issuer Company or any Restricted Subsidiary from from: creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.12, or restricting the sale or other disposition of property or assets of the Issuer Company or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Crescent Finance Co)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by to the Issuer Company or any of its Restricted Subsidiaries;
(2) make loans or advances or to pay any Indebtedness or other obligation owed to the Issuer Company or any other Restricted Subsidiary;Subsidiary of the Company; or
(3) make loans or advances to the Issuer or transfer any other Restricted Subsidiary; or
(4) transfer of its property or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on Subsidiary of the Closing Date in this IndentureCompany, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Dateexcept, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material with respect to the Holders than those foregoing clauses (1), (2) and (3), for such encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of of:
(a) applicable law, rule, regulation or order;
(3b) existing with respect to the Note Purchase Agreement and the Notes;
(c) customary provisions of any Person contract, lease or the property license restricting assignments, subservicing, subcontracting or assets of such Person acquired by the Issuer or other transfers;
(d) any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereofinstrument governing Acquired Indebtedness, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the Person or the property properties or assets of such the Person so acquired;
(4e) in the case of Section 4.15(a)(4):
(i) Existing Facilities as each exists on the Signing Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that restrict in a any restrictions imposed pursuant to any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material facilities similar to the Issuer Existing Facilities (under the relevant circumstances) and its Restricted Subsidiaries taken will not materially affect the Company’s ability to make anticipated principal, premium and interest payments on the Notes (as a wholedetermined in good faith by the Company);
(5f) with respect (x) agreements existing on the Signing Date to the extent and in the manner such agreements are in effect on the Signing Date or (y) the indenture governing the New First Lien Notes;
(g) restrictions on the transfer of assets (other than cash) held in a Restricted Subsidiary and of the Company imposed pursuant to an under any agreement governing Indebtedness incurred in accordance with the Note Purchase Agreement;
(h) provisions in agreements evidencing MTM MSR Indebtedness or Permitted Funding Indebtedness, in each case, that has been entered into impose restrictions on the collateral securing such Indebtedness, provide for financial covenants, limitations on affiliate transactions, the sale or disposition transfer of all or substantially all of the Capital Stock ofassets, other fundamental changes or property and assets ofother customary limitations which, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (each case as determined in good faith by the good faith judgment of the Board of Directors of the Issuer)Company, and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance are customary or restriction will not materially affect the Issuer’s ability of the Company to make principal or pay the principal, interest payments and premium on the Notes; or;
(7i) restrictions on the transfer of assets subject to any Lien permitted under this Indenture the Note Purchase Agreement imposed by the holder of such Lien.;
(cj) Nothing contained restrictions imposed by any agreement to sell assets or Capital Stock permitted under the Note Purchase Agreement to any Person pending the closing of such sale;
(k) any agreement or instrument governing Capital Stock of any Person that is acquired; provided that such encumbrances or restrictions are not created in this Section 4.13 shall prevent contemplation of such acquisition;
(l) the Issuer requirements of any Securitization, Warehouse Facility or MSR Facility that are exclusively applicable to any Restricted Securitization Entity, Warehouse Facility Trust, MSR Facility Trust or special purpose Subsidiary from restricting of the sale Company formed in connection therewith;
(m) customary provisions in joint venture and other similar agreements relating solely to the assets or the Equity Interests of such joint venture;
(n) customary provisions in leases, licenses and other agreements entered into in the ordinary course of business;
(o) restrictions on cash or other disposition of property deposits or assets net worth imposed by customers or other counterparties of the Issuer or any of Company and its Restricted Subsidiaries under contracts entered into in the ordinary course of business;
(p) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that secure Indebtedness impose restrictions on the property purchased or leased of the Issuer nature described in clause (3) of the preceding paragraph;
(q) restrictions that are or were created by virtue of any transfer of, agreement to transfer or option or right with respect to any property not otherwise prohibited under the Note Purchase Agreement;
(r) other Indebtedness, Disqualified Capital Stock or Preferred Stock permitted to be incurred subsequent to the Signing Date pursuant to Section 2 of its Restricted Subsidiariesthis Annex; provided that the restrictions will not materially affect the ability of the Company to pay the principal, interest and premium on the Notes, as determined in good faith by the Company; and
(s) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (b) through (d), (f) through (r) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors whose judgment shall be conclusively binding, not materially more restrictive with respect to such dividend and other payment restrictions, taken as a whole, than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Ocwen Financial Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective effective, any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
that is not a Subsidiary Guarantor to (1a) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary or any other interest or participation in, or measured by, its profits, owned by the Issuer Company or any of its Restricted Subsidiaries;
(2) Subsidiary, or pay any Indebtedness owed to to, the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to the Issuer Company, or any other Restricted Subsidiary; or
(4c) transfer any of its property properties or assets to the Issuer or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this IndentureCompany, the Line of Credit and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of except for such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of:
(i) any agreement, obligation or instrument in effect on the Issue Date, and any amendment, restatement or extension of applicable lawsuch agreement, obligation or instrument to the extent such encumbrances or restrictions are not materially more restrictive to the Securityholders than those in effect on the Issue Date;
(3ii) existing with respect Indebtedness permitted (A) under paragraph (a) of Section 4.04, (B) under clauses (i) or (iii) of paragraph (b) of Section 4.04 or clauses (i), (v), (vi) or (viii) of the definition of Other Permitted Indebtedness, or (C) by agreements and transactions permitted under Section 4.06;
(iii) customary provisions restricting subletting or assignment of any lease or license of the Company or any Restricted Subsidiary;
(iv) any instrument governing Indebtedness or any other encumbrance or restriction of a Person acquired by the Company or any Restricted Subsidiary at the time of such acquisition, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such Person acquired by the Issuer or any Restricted SubsidiaryPerson, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4v) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeCredit Agreement;
(5vi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale any Refinancing Indebtedness permitted under Section 4.04 or disposition of all clauses (i), (v) or substantially all (viii) of the Capital Stock of, or property definition of Other Permitted Indebtedness; provided that the encumbrances and assets of, restrictions created in connection with such Restricted SubsidiaryRefinancing Indebtedness are no more restrictive in any material respect with regard to the interests of the Holders of Securities than the encumbrances and restrictions in the refinanced Indebtedness;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(ivii) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Existing Notes; or
(7viii) restrictions on the terms of purchase money obligations, but only to the extent such purchase money obligations restrict or prohibit the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien.
(c) property so acquired. Nothing contained in this Section 4.13 4.15 shall prevent the Issuer Company from entering into any agreement or any Restricted Subsidiary from instrument providing for the incurrence of Permitted Liens or restricting the sale or other disposition of property or assets of the Issuer Company or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesare subject to Permitted Liens.
Appears in 1 contract
Samples: Indenture (Fedders Corp /De)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock (it being understood that the priority of any Preferred Stock issued by a Restricted Subsidiary in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid by such Restricted Subsidiary owned by the Issuer on its common stock will not be deemed an encumbrance or any of restriction on its Restricted Subsidiariesability to make distributions on its Capital Stock);
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Issuer Company or any other Restricted SubsidiarySubsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company (it being understood that the subordination in right of payment of any obligation owed by a Restricted Subsidiary to any other obligation owed by such Restricted Subsidiary will not be deemed an encumbrance or restriction on its ability to pay such obligation); or
(43) transfer any of its property or assets to the Issuer Company or any other Restricted Subsidiary.Subsidiary of the Company, except in each case for such encumbrances or restrictions existing under or by reason of:
(a) applicable law;
(b) Section 4.13(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in this Indenture, the Line Notes, the Exchange Notes, if any, issued in exchange for the Notes issued on the Issue Date, the Guarantees (including any Guarantees related to the Exchange Notes), if any, and the Security Documents;
(c) customary non-assignment provisions of Credit any contract or any lease governing a leasehold interest or any license agreement of any Restricted Subsidiary of the Company or customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any of its Restricted Subsidiaries entered into in the ordinary course of business;
(d) any agreement or other instrument (including those governing Acquired Indebtedness or Capital Stock) of a Person, or any encumbrance or restriction on the property of such Person, acquired by the Company or any Restricted Subsidiary which was in existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which agreement, encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) encumbrances or restrictions existing and any other agreement in effect on the Closing Date Issue Date, to the extent and in the manner such encumbrances or restrictions are in effect on the Issue Date;
(f) encumbrances or restrictions existing under the ABL Facility Agreement as in effect on the Closing Date, and any extensions, refinancings, renewals Issue Date or replacements of such agreementspursuant to amendments or modifications thereto; provided, however, that the provisions relating to such encumbrances and or restrictions contained in any such extensions, refinancings, renewals amendment or replacements modification are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing not materially more restrictive with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiaryencumbrances and restrictions, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings whole (as determined by the good faith judgment of the Board of Directors of the IssuerCompany in its reasonable and good faith judgment), andthan the provisions relating to such encumbrances or restrictions contained in ABL Facility Agreement as in effect on the Issue Date;
(iii) the Board of Directors of the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7g) restrictions on the transfer of assets or property subject to any Lien permitted under this Indenture imposed by the holder of such Lien.Lien or any agreement or instrument with respect thereto;
(ch) Nothing encumbrances or restrictions imposed by any asset sale agreement, sale-leaseback agreement, stock sale agreement or other agreement to sell assets or Capital Stock, in each case, permitted under this Indenture, to any Person pending the closing of such sale, which restricts distributions by such Restricted Subsidiary or transfers of the assets that are the subject of such agreement;
(i) 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;
(j) customary provisions in joint venture agreements, partnership agreements, limited liability company, organizational and governance documents or other similar agreements (in each case relating solely to the respective joint venture, partnership, limited liability company or similar entity or the equity interests therein) entered into in the ordinary course of business;
(k) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e) and (f) above; provided, however, that the provisions relating to such encumbrance or restriction contained in this Section 4.13 shall prevent any such Indebtedness are not materially more restrictive with respect to such encumbrances and restrictions, taken as a whole (as determined by the Issuer Board of Directors of the Company in its reasonable and good faith judgment), than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e) and (f);
(l) any other agreement governing Indebtedness entered into after the Issue Date that contains encumbrances and restrictions (x) that are not materially more restrictive than those in effect on the Issue Date with respect to that Restricted Subsidiary from restricting pursuant to agreements in effect on the sale Issue Date, (y) with respect to any Indebtedness incurred pursuant to clauses (2), (14) and (15) of the definition of “Permitted Indebtedness” and the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.08(a), that are not materially more restrictive, taken as a whole (as determined by the Board of Directors of the Company in its reasonable and good faith judgment), than those imposed pursuant to the ABL Facility Agreement as in effect on the Issue Date or other disposition (z) that are not reasonably expected to make the Company unable to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company;
(m) Purchase Money Indebtedness or Capitalized Lease Obligations incurred in compliance with Section 4.08; provided that such encumbrances or restrictions only apply to the property or assets acquired with such Purchase Money Indebtedness or Capitalized Lease Obligations;
(n) encumbrances or restrictions arising out of Permitted Tax Abatement Transactions; provided that such encumbrances or restrictions only apply to the Issuer property or any assets that are the subject of its Restricted Subsidiaries such Permitted Tax Abatement Transactions;
(o) encumbrances or restrictions applicable to Government Grant Property; provided that secure Indebtedness such encumbrances or restrictions only apply to such Government Grant Property; and
(p) restrictions on cash or other deposits or net worth imposed by suppliers, customers or landlords under contracts entered into in the ordinary course of the Issuer or any of its Restricted Subsidiariesbusiness.
Appears in 1 contract
Samples: Indenture (Exide Technologies)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to the Company or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or, with respect to any other interest or any of participation in, or measured by, its Restricted Subsidiaries;
profits, or (2) pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Company or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date as in effect on the Closing Issue Date, and any extensionsincluding, refinancingswithout limitation, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect pursuant to the Holders than those encumbrances or restrictions that are then in effect Credit Agreement and that are being extended, refinanced, renewed or replacedits related documentation and the Senior Subordinated Notes and the indenture governing the Senior Subordinated Notes;
(2) existing under or by reason of applicable lawthis Indenture, the Notes, the Convertible Notes and any Third Lien Indebtedness and the indentures related thereto;
(3) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):applicable law or any applicable rule, regulation or order;
(i5) that restrict any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in a customary manner existence at the sublettingtime of such acquisition (but not created in contemplation thereof), assignment which encumbrance or transfer restriction is not applicable to any Person, or the properties or assets of any property or asset that is a leasePerson, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect toother than the Person, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeso acquired;
(56) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary that impose restrictions on the assets to be sold;
(67) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1011 and 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1011 that impose restrictions solely on the Foreign Subsidiaries party thereto;
(10) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(11) customary provisions contained in leases and other agreements entered into in the terms ordinary course of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:business;
(i12) the encumbrance any encumbrances or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders restrictions of the Notes than is customary type referred to in comparable financings clauses (as determined a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (11) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Issuer)Company no more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(iii13) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the IssuerCompany, in its good faith, determines that are necessary or advisable to effect such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienReceivables Facility.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Sealy Corp)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer Parent will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to Parent or any Restricted Subsidiary (x) on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or (y) with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
profits or (2) pay any Indebtedness owed to the Issuer Parent or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Parent or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Parent or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Closing Date in this Indenture, the Line of Credit and any other agreement contractual encumbrances or restrictions in effect on the Closing Date Issue Date, including, without limitation, pursuant to the Senior Credit Facilities and the related documentation, the Secured Notes Indenture and the related documentation and the Columbus Indenture and the related documentation, and pursuant to Indebtedness of Restricted Subsidiaries, in each case as in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable lawthis Indenture, the Notes and Guarantees;
(3) existing with respect purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired or leased;
(4) applicable law or any applicable rule, regulation or order or governmental licenses, concessions, franchises or permits;
(5) any agreement or other instrument of a Person acquired by Parent or any Restricted Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), 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 property or assets of such the Person acquired by the Issuer or any Restricted Subsidiaryand its Subsidiaries, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(46) in contracts for the case sale of Section 4.15(a)(4):
(i) that restrict in a assets, including customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted SubsidiarySubsidiary or conditions imposed by Governmental Authorities or otherwise resulting from dispositions required by Governmental Authorities;
(67) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 1011 and Section 1012 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) customary provisions in joint venture agreements, and other similar agreements;
(10) in the case of a Subsidiary that is not a Wholly-Owned Restricted Subsidiary, restrictions and conditions imposed by its organizational documents or any related shareholders, joint venture or other agreements (including restrictions on payments of dividends or other distributions);
(11) customary provisions contained in leases, subleases, licenses and other agreements or arrangements entered into in the terms ordinary course of any business;
(12) other Indebtedness of Parent or any agreement Restricted Subsidiary that is incurred subsequent to the Issue Date pursuant to which such Indebtedness was issued if:
(i) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines Section 1011; provided that such encumbrance encumbrances or restriction restrictions will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the NotesNotes (as determined by the Board of Directors of the Issuer in good faith); or
(713) any encumbrances or restrictions on of the transfer of assets subject type referred to any Lien permitted under this Indenture imposed by the holder of such Lien.
in clauses (a), (b) and (c) Nothing contained above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (12) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Parent’s Board of Directors, not materially more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.13 shall prevent 1014, the Issuer subordination of loans or advances made to Parent or any Restricted Subsidiary from restricting shall not be deemed a restriction on the sale ability to make loans or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiariesadvances.
Appears in 1 contract
Samples: Indenture (Liberty Global PLC)
Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Parent shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions permitted by applicable law to Parent or any Restricted Subsidiary on any its Capital Stock of such Restricted Subsidiary owned by the Issuer or any of its Restricted Subsidiaries;
(2) pay any Indebtedness owed to the Issuer Parent or any other Restricted Subsidiary;
(3b) make loans or advances to the Issuer Parent or any other Restricted Subsidiary; or
(4c) sell, lease or transfer any of its property properties or assets to the Issuer Parent or any other Restricted Subsidiary.
, except (bin each case) Section 4.13(a) shall not restrict any for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing contractual encumbrances or restrictions in effect on the Closing Issue Date or the Distribution Date, if on substantially the terms described in the Offering Memorandum, including those arising under the Senior Credit Facilities, this Indenture, the Line of Credit Notes and any other agreement in effect on the Closing Date as in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedGuarantees;
(2) existing under or by reason purchase money obligations for property acquired in the ordinary course of applicable lawbusiness and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(3) existing applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by or merged or consolidated with respect or into Parent or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), 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 property or assets of such the Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a wholeSubsidiaries, so acquired or designated;
(5) contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary and imposed of Parent pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock ofor assets of such Subsidiary;
(6) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.07 and 4.10 that apply only to the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 4.07;
(9) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
(10) customary provisions contained in agreements and instruments, including but not limited to leases, subleases, licenses, sublicenses or similar agreements, in each case, entered into in the ordinary course of business;
(11) customary provisions that arise or are agreed to in the ordinary course of business and do not detract from the value of property and or assets of, of Parent or any Restricted Subsidiary in any manner material to Parent or such Restricted Subsidiary;
(612) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:Hedging Obligations;
(i13) the encumbrance or restriction applies only restrictions created in the event of a payment default or a default connection with respect to a financial covenant contained any Receivables Facility that, in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment determination of the Board of Directors of the Issuer)Parent, are necessary or advisable to effect in connection with such Receivables Facility; and
(iii14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Parent’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.14: (i) the Board priority of Directors of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common equity shall not be deemed a restriction on the Issuer, in its good faith, determines that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to Parent or a Restricted Subsidiary to other Indebtedness incurred by Parent or any such Restricted Subsidiary shall not be deemed a restriction on the Notes; or
(7) restrictions on the transfer of assets subject ability to any Lien permitted under this Indenture imposed by the holder of such Lienmake loans or advances.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
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Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Issuer will Company shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions permitted by applicable law on to the Company or any Capital Stock of such other Restricted Subsidiary owned by the Issuer on its Equity Interests or with respect to any of other interest or participation in, or measured by, its Restricted Subsidiaries;
(2) profits, or pay any Indebtedness owed to the Issuer Company or any other Restricted Subsidiary;
, (3b) make loans or advances to to, or guarantee any Indebtedness or other obligations of, the Issuer Company or any other Restricted Subsidiary; or
, or (4c) transfer any of its property properties or assets to the Issuer Company or any other Restricted Subsidiary.
(b) Section 4.13(a) shall not restrict any , except for such encumbrances or restrictions:
restrictions existing under or by reason of (1i) existing on the Closing Date in this Indenture, the Line of Credit and Facility or any other agreement in effect of the Company or the Restricted Subsidiaries outstanding on the Closing Date Issue Date, in each case as in effect on the Closing Issue Date, and any extensionsamendments, refinancingsrestatements, renewals renewals, replacements or replacements refinancings thereof; provided, however, that any such amendment, restatement, renewal, replacement or refinancing is no more restrictive in the aggregate with respect to such encumbrances or restrictions than those contained in the Credit Facility on the Issue Date; (ii) applicable law; (iii) any instrument governing Indebtedness or Equity Interests of an Acquired Person acquired by the Company or any Restricted Subsidiary as in effect at the time of such agreementsacquisition (except to the extent such Indebtedness was incurred by such Acquired Person in connection with, as a result of or in contemplation of such acquisition); provided, however, that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary, or the properties or assets of the Company or any Restricted Subsidiary, other than the Acquired Person; (iv) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices and non-assignment provisions in agreements between the Company or any Restricted Subsidiary and the NRTC with respect to DBS services; (v) Purchase Money Indebtedness for property acquired in the ordinary course of business that only imposes encumbrances and restrictions on the property so acquired; (vi) any agreement for the sale or disposition of the Equity Interests or assets of any Restricted Subsidiary; provided, however, that such encumbrances and restrictions described in this clause (vi) are only applicable to such Restricted Subsidiary or assets, as applicable, and any such sale or disposition is made in compliance with Section 4.05 to the extent applicable thereto; (vii) refinancing Indebtedness permitted under clause (h) of the second paragraph of Section 4.04; provided, however, that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of Section 4.15(a)(4):
(i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries taken as a whole;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which agreements governing such Indebtedness was issued if:
are no more restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing; (iviii) the this Indenture; or (ix) any such customary encumbrance or restriction applies only existing under any other security agreement, instrument or document hereafter in effect; provided, however, that the event terms and conditions of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(ii) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the good faith judgment of the Board of Directors of the Issuer), and
(iii) the Board of Directors of the Issuer, in its good faith, determines that any such encumbrance or restriction will are not materially affect more restrictive than those contained in the Issuer’s ability to make principal or interest payments Credit Facility as in effect on the Notes; or
(7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such LienIssue Date.
(c) Nothing contained in this Section 4.13 shall prevent the Issuer or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Issuer or any of its Restricted Subsidiaries.
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Samples: Indenture (Digital Television Services of Kansas LLC)
